[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




                      PROPOSALS FOR REFORM OF THE 
                      MILITARY COMMISSIONS SYSTEM

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 30, 2009

                               __________

                           Serial No. 111-26

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel



















                            C O N T E N T S

                              ----------                              

                             JULY 30, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Subcommittee on the Constitution, 
  Civil Rights, and Civil Liberties..............................     4
The Honorable William D. Delahunt, a Representative in Congress 
  from the State of Massachusetts, and Member, Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties............     6

                               WITNESSES

The Honorable David Kris, Assistant Attorney General, National 
  Security Division, Department of Justice
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
The Honorable Jeh Charles Johnson, General Counsel, Department of 
  Defense
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Colonel Peter R. Masciola, USAFG, Chief Defense Counsel, Office 
  of Military Commissions--Defense
  Oral Testimony.................................................    38
  Prepared Statement.............................................    41
Major David J. R. Frakt, USAFR, Lead Defense Counsel, Office of 
  Military Commissions--Defense
  Oral Testimony.................................................    90
  Prepared Statement.............................................    92
Mr. Steven A. Engel, Dechert LLP
  Oral Testimony.................................................   108
  Prepared Statement.............................................   111
Mr. Eugene R. Fidell, Senior Research Scholar in Law and Florence 
  Rogatz Lecturer in Law, Yale Law School
  Oral Testimony.................................................   123
  Prepared Statement.............................................   126

                                APPENDIX

Material Submitted for the Hearing Record........................   149

 
                      PROPOSALS FOR REFORM OF THE 
                      MILITARY COMMISSIONS SYSTEM

                              ----------                              


                        THURSDAY, JULY 30, 2009

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:55 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Delahunt, Jackson Lee, and 
King.
    Staff present: David Lachman, Majority Subcommittee Chief 
of Staff; Heather Sawyer, Majority Counsel; Matthew Morgan, 
Majority Professional Staff Member; and Paul Taylor, Minority 
Counsel.
    Mr. Nadler. Ladies and gentlemen, unfortunately the hearing 
is going to have to wait on the votes on the House floor.
    As you can see, there are 8 minutes and 29 seconds, which 
probably means closer to 10\1/2\ minutes, left on the first 
vote. But after that, there are 14 more votes, most of them 2-
minute votes.
    But there is a motion to recommit, which is a 10-minute 
debate and a 25-minute--and a 15-minute vote, so it is probably 
going to be about an hour. And I apologize, but the hearing is 
going to have to wait for those votes to be completed.
    So thank you for coming, but we just have to wait for the--
I apologize to the witnesses, but thank you.
    [Recess.]
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights and Civil Liberties will come to 
order, with the agreement of the minority. And we expect a 
minority Member here shortly.
    I recognize myself--excuse me--first for an opening 
statement.
    Today the Subcommittee--and let me, before I do the opening 
statement, I apologize for everyone here, including the 
witnesses, for the fact that this is almost 2 hours getting--
late getting started, but that was unavoidably, as you know, 
because of the votes, which I assume you saw up there.
    And you can thank everybody there. We now have, by 
unanimous consent, 2-minute votes, not 5-minute votes, or we 
would be there another hour.
    I now recognize myself for an opening statement.
    Today the Subcommittee examines proposals for reform in the 
military commissions system and, more importantly, how we in 
Congress can work together productively and with the 
Administration to clean up the terrible legacy of the Bush 
administration's detention policies in a manner that provides 
us with a legitimate legal framework going forward.
    Over the past 7 years, approximately 800 individuals have 
been detained at Guantanamo, Cuba, with some 500 already having 
been released before President Obama took office in January.
    In those 7 years, only three detainees have been convicted 
of terrorism offenses using the military commissions, and 
approximately 230 individuals remain at the facility.
    Most of these men have been held for at least 4 years. Some 
have been detained for more than 6 years. By contrast, 
approximately 200 individuals have been charged with 
international terrorism, prosecuted, convicted and sentenced to 
long prison terms using our normal Article III Federal courts.
    These numbers speak for themselves, yet the Obama 
administration, after initially halting use of the military 
commissions and beginning an in-depth case-by-case review of 
the individuals still being detained at Guantanamo, has said 
that the commissions are necessary.
    Why? The general explanation is that military commissions 
provide the flexibility that is necessary to account for ``the 
reality of battlefield situations and military exigencies,'' 
such as chain of custody concerns, the need to use hearsay 
statements, and an appropriate test for determining whether 
incriminating statements were coerced or voluntary under the 
circumstances.
    This might explain the need in cases where an individual is 
caught in the heat of battle, but it does not explain the need 
for military commissions in other circumstances.
    My concern remains, as I articulated at our hearings a few 
weeks ago, that we may be creating a system in which we try you 
in Federal court if we have strong evidence, we try you by 
military commission if we have weak evidence, and we detain you 
indefinitely if we have no evidence. That is not a justice 
system.
    Mohammed Jawad's case, which was again before a Federal 
judge today, provides just one example. At our hearing a few 
weeks ago, Lieutenant Colonel Vandeveld, the lead military 
prosecutor responsible for bringing Mr. Jawad to justice in the 
military commission system, testified that he resigned because 
he could not ethically or legally prosecute the case.
    After discovering exculpatory evidence had been withheld 
from the defense and determining that Mr. Jawad's confession, 
the only evidence against him, had been obtained through 
torture, Lieutenant Colonel Vandeveld was unable to convince 
his supervisor to reach a plea agreement that would have 
allowed Mr. Jawad's release and return to his family after 
nearly 7 years in Guantanamo.
    Convinced that it was not possible to achieve justice 
through the military commission system, Lieutenant Colonel 
Vandeveld felt he had no choice but to resign his post.
    A military judge and a Federal judge have since ruled that 
Mr. Jawad's confession was obtained through torture. In the 
Federal habeas corpus proceedings, the judge has called the 
case ``an outrage'' and has urged the Administration to send 
Mr. Jawad, who may have been 12 years old when captured in 
2002, home.
    It is my understanding that at a hearing this morning the 
judge, in fact, ordered his release.
    Mr. Jawad's case is not an anomaly. In 26 of the 
approximately 31 habeas corpus cases brought by Guantanamo 
detainees and decided so far, Federal judges have concluded 
that the government does not have sufficient evidence to 
justify or continue the detention.
    These numbers are staggering--not one case, not two, but in 
85 percent of the cases when an individual finally has gotten 
meaningful review, Federal judges have found that there was no 
grounds for detention. This is a stain on American justice.
    Not only has the system served as a tremendous recruiting 
tool for our enemies, it has proven legally unsustainable and 
unjust. We would challenge such a system set up by another 
country to detain and try Americans. We should demand no less 
of ourselves.
    The detainees at Guantanamo and other individuals who we 
may capture today or tomorrow are accused terrorists. They are 
not terrorists. They are accused terrorists. Some may be 
terrorists, but right now they are accused terrorists. They 
have not been proven to be terrorists.
    And while officials in the previous Administration were 
fond of claiming that its detainees at Guantanamo were the 
worst of the worst, the Bush administration released the vast 
majority of them, approximately 500 in all. Apparently the Bush 
administration did not really think they were the worst of the 
worst.
    The people who we have detained because they were turned 
over to us by someone with a grudge or by someone who wanted to 
collect a bounty do not belong in custody.
    We have an obligation to determine who should and should 
not be imprisoned and to afford fair trials to those we believe 
have committed crimes. This is especially important if our 
government plans to seek prison sentences or to execute those 
convicted.
    There is no doubt that keeping America safe is paramount. 
We must decide how to deal with these individuals in a manner 
that ensures that our Nation is protected from those who would 
do us harm, in a manner that is consistent with our laws, our 
treaty obligations and our values.
    We are the United States of America, and we have traditions 
and beliefs worth fighting for and worth preserving. This 
problem will not go away simply because we close Guantanamo. We 
are still fighting in Afghanistan and Iraq. We are still 
battling terrorists around the world.
    We will continue to have to intercept and detain 
individuals who have attacked us or who threaten us. We need to 
be sure that, however we handle these cases, we do not conduct 
kangaroo courts.
    This debate has been dominated by a great deal of fear-
mongering. That is no way to deal with a problem of this 
magnitude. Fanning the flames with the unfounded claim that it 
is a threat to our national security to transfer individuals to 
the U.S. for detention and trial defies logic and reality.
    We have long housed and prosecuted dangerous criminals and 
terrorists in my district and elsewhere. It is an insult to our 
law enforcement and military to suggest that they cannot do the 
same with regard to those individuals that we have been holding 
at Guantanamo.
    Others have argued that because some individuals released 
from Guantanamo have turned to battle, we must now hold all 
others forever. But we are not a police state. In order to 
imprison anyone, we must have sufficient evidence to do so.
    Much as some people would like to drop detainees down a 
hole and forget about them, this is simply not an option 
legally or morally. It is also not necessary.
    We are not the first country in history to have to deal 
with potentially dangerous people. Indeed, this is not the 
first time this country has had to deal with potentially 
dangerous people.
    I do not underestimate the enormity of the challenge both 
from a security standpoint and a legal one, but we can and will 
find solutions that honor the rule of law, and in so doing keep 
us safe.
    I look forward to the testimony of our witnesses with 
confidence that you will be able to provide guidance as we look 
forward. I thank you. I yield back the balance of my time.
    Now, did the gentleman from Iowa wish to give an opening 
statement for the minority?
    Mr. King. I would like to give an opening statement 
representing myself, Mr. Chairman.
    Mr. Nadler. The gentleman is recognized.
    Mr. King. Thank you, Mr. Chairman.
    I wanted to give my thanks and appreciation to the 
witnesses that are about to testify and this hearing that I am 
not particularly enthusiastic about having--I have watched this 
unfold over the last years since September 11, and it appears 
to me that we are moving in a direction away from national 
security and a direction towards making us more vulnerable to 
attack.
    I have gone down to Gitmo and visited Gitmo. I don't 
believe that there has been any place or any time in history 
that--I won't declare them to be, let's say, accused 
terrorists. I will say they are enemy combatants.
    And I don't think enemy combatants--and the implication 
includes as well prisoners of war--that have ever been treated 
as good as the inmates are down at Guantanamo Bay--air 
conditioned facilities, three squares a day, nine choices from 
the menu, 100 minutes of prayer time every day--the list goes 
on.
    And yet our guards are attacked every day, multiple times a 
day, and we don't have any recourse to punish those prisoners.
    But we are here to examine the path that might be taken and 
a path that might be opened, and I am concerned that it might 
end up in opening up our prison gates and turning people loose 
onto this society that are the worst of the worst.
    And I don't concede that they are anything else. That is 
the reason they are there. This Administration wants to find a 
way to relieve themselves of the burden of the--you know, the 
inmates down at Guantanamo Bay.
    I have read the executive order. The date of its--the drop-
dead date to empty out Guantanamo Bay is January 22, 2010. It 
hangs there on the bulletin board in the commons room at 
Guantanamo--or the commons area at Guantanamo Bay, in English 
and in Arabic, so that when they gather together after their 
soccer game or around the edge of their foosball table they can 
read that promise from the President of the United States that 
they will not be there 1 day longer than January 22, 2010.
    We heard yesterday before a hearing from Mr. Forbes of 
Virginia that he had just returned from there within the last 2 
weeks, and he articulated a path by which we might be 
considerably more vulnerable, and that path is the one that is 
charted out before us now.
    So I am concerned that if we bring people to the United 
States, judges do things we cannot anticipate. And if we had 
100 percent confidence that we had picked up battlefield 
evidence and that we could convict people that were actually 
guilty with that evidence and release people that were not 
guilty with that evidence, then I wouldn't have any trepidation 
about bringing them to the United States and trusting a Federal 
judge, or whatever the mechanism might be.
    But in the meantime, we are dealing with what Congress has 
enacted and the President signed into law, a military 
commission system that granted unlawful enemy combatants more 
rights and more procedural protections than they had ever 
enjoyed before anywhere in the world. And that is all 
throughout human history.
    These protections include the presumption of innocence; the 
imposition of the burden of proof on the prosecution; the right 
to counsel, either military or civilian, at American taxpayers' 
expense, at the discretion of the accused; the right to be 
presented with the charges in advance of the trial; access to 
interpreters, as we do in this country, so that they understand 
the proceedings and the charges against them.
    And there will be--there is a prohibition against any 
negative inference from a refusal to testify. They aren't 
compelled to testify or be a witness against themselves or 
anyone, and so that is--access to reasonably available evidence 
and witnesses, access to investigative resources as necessary 
for a full and fair trial. The list goes on.
    And so however this unfolds, I want America to remain as 
safe as it has been since the September 11 attacks in 2001. I 
think that this Congress acted quickly. I think that the 
military conducted themselves within the law in an honorable 
fashion. And I understand the difference in opinion that we 
have.
    But in the end, no nation respects the rule of law more 
than the United States of America. No nation has treated its 
enemy combatants as well as we have treated these. No nation 
has provided air conditioning in the Caribbean the way we have.
    And we need to also find a way to resolve this, and I 
understand that. It is a difficult conundrum that has been 
accelerated by the executive order, which I think was motivated 
more from a political judgment than it was a judgment of 
reality.
    And I will support the President in any alteration he might 
have of that that will provide more safety for the American 
people. I look forward to the testimony.
    And I yield back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    And I now recognize the gentleman from Massachusetts for an 
opening statement.
    Mr. Delahunt. Yes, I didn't intend to give an opening 
statement, but I think it is important that I respond to my 
good friend from Iowa.
    I would make the point that national security and justice 
are not exclusive. In fact, I would submit that Guantanamo has 
been a prolific tool for terrorists to multiply and to recruit 
others. The existence of Guantanamo has led to an increasing 
number of terrorists all over the world. We have a different 
view of that.
    Now, I am glad to hear that my friend has been down to 
Guantanamo. In my former life, I happened to be the state's 
attorney up in the greater Boston area. I have been to a lot of 
prisons. I have put a lot of people there, in some cases for 
the rest of their lives. But I always hoped I was doing 
justice.
    You know, the concept of a presumption of innocence is not 
something that threatens me. And I think that presumption of 
innocence is a genuine American value. That is what we are 
about. That is what we are truly about.
    And I have been a severe critic of the Bush administration, 
and I am sure that, you know, some here have applauded the 
policies of the former President and Vice President. But I 
think it is interesting to note that in excess of 500 of the 
worst of the worst were released by the Bush administration. 
That seems somewhat inconsistent to me.
    But I also think it is interesting that while the gentleman 
from Iowa went and had the tour of Guantanamo and seems to know 
something about the detainees there and their daily existence, 
I am sure that he did not have an opportunity to talk to them.
    He is shaking his head in the affirmative. I will yield to 
the gentleman. I would like to hear what conversations he had 
with the detainees.
    Mr. King. Well, thank you for yielding, and I will note 
first that those that have been released are the best of the 
worst, and the ones left are the worst of the worst.
    But I did talk to some of them, and the conversation was 
limited, and I think that is what the gentleman from 
Massachusetts expects. One of them came over to the fence and 
he said, ``I don't have a Russian-language Koran. That is 
unjust. You must get me a Russian-language Koran.'' So that was 
the level of the angst I----
    Mr. Delahunt. Did you have an opportunity to have 
interaction with them?
    Mr. King. That was interaction, yes, although I didn't walk 
among them like I might other inmates because----
    Mr. Delahunt. Okay.
    Mr. King [continuing]. It is too dangerous.
    Mr. Delahunt. Well, let me remind the gentleman that both 
myself and the Ranking Member--I happen to Chair the 
Subcommittee on Oversight of the House Foreign Affairs 
Committee, and I have been invited many times to Guantanamo.
    And I would have accepted that invitation, as would my 
colleague, Mr. Rohrabacher, if we were given an opportunity to 
actually sit down with the detainees and inquire of them.
    Now, at a hearing--oh, I think it was maybe last week or 2 
weeks ago, we had a hearing relative to the interaction between 
the Chinese intelligence agents that were provided access to 
the Chinese Muslims called Uighurs who are a persecuted 
minority by the Chinese. You might have noted over the course 
of the past month or so there has been thousands detained.
    According to a woman who leads the diaspora, Rabiya Kadir, 
who will be with us tomorrow--and I would hope that the 
gentleman could come and listen to her--there are 10,000 that 
are still missing.
    They were given the opportunity over a 10-day period to 
interview the Uighurs where they were interrogated, where they 
were intimidated, and where they were threatened.
    That is what I think we have a right to hear, because--and 
it might interest the gentleman that our Republican colleague 
Mr. Rohrabacher and I are both convinced that those Uighurs, if 
resettled here in the United States, would contribute to the 
United States because they are opposed to al-Qaida and Taliban 
and any form of terrorists.
    I dare say they are more aptly described as the Tibetans 
who are persecuted by the Communist Chinese intelligence agents 
who haven't been heard from, who have not been heard from.
    And I think I will yield there, but I think my good friend 
gets the message. Oh, by the way, it wasn't just the Chinese 
intelligence agents that were down there. And we know that 
their history and their record in terms of human rights, and 
the fact that they have executed and tortured Uighurs, 
according to our own State Department, for decades now.
    In addition to that, there were two--there were several 
detainees from Uzbekistan who received--whose intelligence 
agents and security agents were also invited in to have the 
kind of interaction which I think would be very, very 
informative for this panel and for this Congress to have, and 
we were denied it.
    With that, I yield back.
    Mr. Nadler. I thank the gentleman.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing, which the Chair will do only in the 
event of more votes or some catastrophe.
    We will now turn to our witnesses. As we ask questions of 
our witnesses, the Chair will recognize Members in the order of 
their seniority on the Subcommittee, alternating between 
majority and minority, provided that the Member is present when 
his or her turn arrives.
    Members who are not present when their turns begin will be 
recognized after the other Members have had the opportunity to 
ask their questions.
    The Chair reserves the right to accommodate a Member who is 
unavoidably late or only able to be with us for a short time.
    I would like to welcome our first panel. David Kris is the 
assistant attorney general for national security. Mr. Kris was 
an attorney in the criminal division from September 1992 to 
July 2000, where he worked primarily in appellate litigation.
    As associate deputy attorney general from July 2000 to May 
2003, Mr. Kris' work focused on national security issues, 
including supervision the government's use of the Foreign 
Intelligence Surveillance Act, representing the department at 
the National Security Council, and assisting the attorney 
general in conducting oversight of the intelligence community.
    Mr. Kris also taught at Georgetown University Law School 
and served as a non-resident senior fellow at the Brookings 
Institution. Mr. Kris graduated from Haverford College in 1988 
and Harvard Law School in 1991. Following law school, he served 
as a law clerk for Judge Stephen Trott on the Ninth Circuit 
Court of Appeals.
    Jeh Charles Johnson is the general counsel of the 
Department of Defense where he serves as the chief legal 
officer of the Department of Defense and legal advisor to the 
secretary of defense.
    Mr. Johnson began his career in public service as an 
assistant United States attorney in the Southern District of 
New York, where he prosecuted public corruption cases. He was 
in private practice at the firm of Paul Weiss Rifkind Wharton & 
Garrison.
    In October 1998, President Clinton appointed Mr. Johnson to 
be general counsel of the Department of the Air Force. He 
served in that position for 27 months.
    I am pleased to welcome you both. Your written statements--
and again, I apologize for the delay. Your written statements 
in their entirety will be made part of the record. I would ask 
each of you to summarize your testimony in 5 minutes or less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains, the light will switch 
from green to yellow and then red when the 5 minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses.
    [Witnesses sworn.]
    If you would please stand and raise your right hand to take 
the oath.
    Do you swear or affirm under penalty of perjury that the 
testimony you are about to give is true and correct to the best 
of your knowledge, information and belief?
    Mr. Kris. I do.
    Mr. Nadler. Let the record reflect the witnesses answered 
in the affirmative.
    You may be seated.
    Mr. Kris?

   TESTIMONY OF THE HONORABLE DAVID KRIS, ASSISTANT ATTORNEY 
   GENERAL, NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE

    Mr. Kris. Thank you very much, Mr. Chairman. And thank you 
and all of the Members of the Committee for inviting me here to 
testify.
    Federal prosecution in Article III courts can be an 
effective method of protecting national security, consistent 
with fundamental due process and the rule of law.
    In the 1990's, I prosecuted a group of violent 
antigovernment extremists. And like their modern counterparts, 
they engaged in what would now be called ``lawfare.'' As a 
result of that, the trials were very challenging.
    But the prosecution succeeded not only because it 
incarcerated the defendants but also because it deprived them 
of legitimacy for their antigovernment and other extreme 
beliefs.
    Military commissions can help do the same for those who 
violate the law of war--that is, not only detain them for 
longer than might otherwise be possible under the law of war, 
but also to brand them as illegitimate war criminals.
    To do that effectively, however, the commissions themselves 
must first be reformed. And the legislation that is now pending 
in Congress is a tremendous step in that direction. If enacted 
with the changes that we have suggested, it will make military 
commissions both fundamentally fair and effective.
    And with that, I think I will stop, and I will be happy to 
answer any questions. Thank you.
    [The prepared statement of Mr. Kris follows:]
             Prepared Statement of the Honorable David Kris



                               __________

    Mr. Nadler. I thank you.
    Mr. Johnson?

    TESTIMONY OF THE HONORABLE JEH CHARLES JOHNSON, GENERAL 
                 COUNSEL, DEPARTMENT OF DEFENSE

    Mr. Johnson. Thank you, Mr. Chairman. Like Mr. Kris, I will 
dispense with the full reading of my prepared statement. You 
have it for the record. I would just like to make a few 
observations very briefly and then look forward to your 
questions.
    First, I can't help but recall that my career in public 
service began 32 years ago this summer, where I spent a lot of 
time in this room with my congressman, Hamilton Fish Junior, 
who rose to be Ranking Member of this Judiciary Committee when 
I was a college intern for him. And I remember him fondly.
    It is apparent to me--and I am aware of the sharp 
difference of opinion about these issues concerning Guantanamo 
and military commissions that exist on this Subcommittee and in 
this Congress. And it is my hope that during this session we 
can try to educate--respond to your questions in a forthright, 
meaningful way.
    The President in May decided that the Administration could 
go forward with reformed military commissions, after a lot of 
consideration and thought by the President personally and by 
members of the Administration. In May we in the Department of 
Defense proposed five rule changes to military commissions 
procedure.
    Most significantly, and the one that I am personally most 
proud of, is the elimination of any possible use in evidence in 
a military commissions trial of statements taken as a result of 
cruel, inhuman, degrading treatment.
    That one change alone, in my personal opinion, will do more 
to restore the credibility of military commissions, and it was 
one that we did with the unanimous support of our judge 
advocate generals in the military service and a lot in the 
military lawyer community.
    The Senate, as you know, passed legislation to reform the 
Military Commissions Act. That legislation was passed as part 
of the authorization bill on July 23. We and the Administration 
think that the bill identifies virtually all the issues for 
reform and change.
    We look forward to working with the Congress, House and 
Senate, on further changes that the Administration and the 
Congress may wish to make. Mr. Kris and I testified last week 
before the House Armed Services Committee concerning that bill.
    And we look forward to responding to your questions 
concerning the pending legislation or detainee affairs 
generally.
    One thing I will add concerning Guantanamo generally--and 
this was alluded to by the Members of the Committee--I will 
submit respectfully that many Members of Congress go to 
Guantanamo Bay, come back and are impressed with what they see 
today. And I will submit that is not the issue.
    The issue is that al-Qaida needs recruitment tools, and al-
Qaida, in fact, uses Guantanamo Bay, Abu Ghraib and other 
rallying cries as recruitment tools to their cause. There are 
published reports of al-Qaida using Guantanamo Bay as recently 
as 2008. Bin Laden personally uses Guantanamo Bay as one of his 
bumper-sticker recruitment tools.
    So a cross-section of national leaders from John McCain, 
President Obama, General Powell--George W. Bush said he would 
like to see Guantanamo Bay closed--have all caused--called for 
the closure of Guantanamo Bay not just for symbolism reasons 
but for reasons of enhancing national security.
    This President, when he took office, recognized that large 
Federal bureaucracies work best with a deadline and imposed a 
deadline on us for doing so. And we remain committed to closing 
Guantanamo Bay in this Administration.
    Thank you very much. Look forward to your questions.
    [The prepared statement of Mr. Johnson follows:]
        Prepared Statement of the Honorable Jeh Charles Johnson



                               __________

    Mr. Nadler. Thank you.
    I will now recognize myself for a period of questioning.
    First, Mr. Johnson, you have testified on a number of 
occasions that the Administration intends to assert its 
authority to detain individuals, relying on the authorization 
for the use of military force and the Supreme Court's Hamdi 
decision regarding the detention of individuals captured on the 
battlefield during wartime, for the duration of hostilities to 
ensure that they do not return to the fight.
    How does the Administration propose to identify those who 
truly are ``individuals captured on the battlefield?'' And what 
proves that someone falls into this category? And what is the 
process that will be provided to make this determination?
    And let me just amplify that a bit. We talk about military 
commissions for war crimes. We talk about how we convict 
someone of a war crime. But we also have the duty to keep 
someone from returning to the fight--to keep combatants off the 
streets whether they committed the crime or not.
    If you captured someone wearing a Wehrmacht uniform in 
World War II in Normandy carrying a rifle, there wasn't too 
much question he was a combatant and he was a prisoner of war.
    But how do we--the question is what process is there to 
determine that someone who claims he isn't a combatant is, in 
fact, one if he is captured, A, either near the battlefield or 
on the battlefield, or somewhere else?
    What process do we--I mean, what kind of process will be--
is afforded after the fact or before the fact?
    Mr. Johnson. Well, if you talk about the current population 
in Guantanamo, virtually, I think, all of them are suing us in 
habeas litigation right now. One of the first things this 
Administration did was to revise the definition of what we say 
is our detention authority.
    We did that in a filing by the Department of Justice in 
several of these cases on March 13th, 2009. And what we did was 
we are no longer using the phrase ``unlawful enemy combatant.''
    And as you noted, Mr. Chairman, we are relying more closely 
on the authorization for the use of military force passed by 
the Congress in 2001 as informed by the laws of war. And there 
is a paragraph that we are now asserting as our detention 
authority which will be tested in these habeas cases case by 
case.
    Mr. Nadler. Okay. The authority is one thing, but how--what 
is the process? There has got to be some process for 
determining going forward. And yes, the habeas corpus process, 
by default, is being used now for people who were in Guantanamo 
for a long period of time.
    But if we captured someone tomorrow and we suspect he is a 
combatant, and he says, ``No, I am not,'' what is the process 
for determining whether he is a combatant and can be held for 
years?
    Mr. Johnson. Well, prior to this Administration coming to 
office, what existed was a review process that involved--I am 
going to use acronyms--ARBs and CSRTs--Administrative Review 
Boards and----
    Mr. Nadler. Which the Supreme Court said was----
    Mr. Johnson [continuing]. Combatant Status Review--which 
has been suspended.
    The President called for some process of periodic review--
in other words, if we prevail in a habeas case, we are not 
going to just simply throw away the key and forget about the 
person. We are going to have a process of periodic review.
    Mr. Nadler. What is the initial process, a habeas case?
    Mr. Johnson. The initial process is a form of board that 
should occur within a period of days after a person is 
captured. And we are developing that process now.
    Then after a period of time--and we are--this is in the 
midst of review right now--whether it 6 months, 12 months--
there will be another look to make the threat assessment, to 
review the detention authority, and then after a period of 
years there may be some heightened level of review.
    But there will be, as the President has called, some form 
of periodic review to make a threat assessment that will 
involve----
    Mr. Nadler. That is making a threat assessment after--but 
what due process is there for someone who says, ``You got the 
wrong guy. I am not an enemy combatant. I had nothing to do 
with this?''
    Mr. Johnson. Well, the Boumediene case----
    Mr. Nadler. Which case?
    Mr. Johnson [continuing]. Granted the Gitmo detainees the 
right to habeas.
    Mr. Nadler. So you are saying you would have to--the only 
process is the habeas process?
    Mr. Johnson. No, I would expect, as I said, that there will 
be some form of periodic review, initially and then over time, 
irrespective of the litigation.
    Mr. Nadler. And this is for people captured on or near a 
battlefield. Do we still claim the authority to pick up someone 
in London or in Peoria and say they are an enemy--whatever we 
are calling them now--they are a combatant?
    Mr. Johnson. Obviously, Mr. Chairman, it depends on the 
circumstances. There is litigation right now concerning the 
Bagram detainees where Judge Bates found that those captured 
away from Afghanistan had habeas rights. The government has 
appealed that. He did not find that with respect to those who 
were captured in Afghanistan.
    And so we have asserted that those captured away from the 
battlefield, as you referred to it, do not have habeas rights 
in Afghanistan. With regard to the Guantanamo population, the 
Supreme Court has resolved that issue with the Boumediene case.
    Mr. Nadler. The time has expired.
    The gentleman from Iowa?
    Mr. King. Thank you, Mr. Chairman.
    Let me pick up where that is. Mr. Johnson, as I understand 
what you said--is that those captured in Afghanistan have not 
at this point successfully made a habeas claim.
    Mr. Johnson. That is correct.
    Mr. King. And is it the Administration's position that they 
would resist any habeas filings for those that--those enemy 
combatants that were picked up in Afghanistan?
    Mr. Johnson. Well, we haven't really been tested in that 
regard. The Department of Justice has appealed the ruling of 
Judge Bates with regard to those captured away from the 
battlefield who are detained in Afghanistan, so the implication 
of that is that the Administration view, I believe, is that 
there should not be habeas for those captured in Afghanistan, 
detained in Afghanistan. That is the implication or the--
implication.
    Mr. King. It is not certain yet at this point.
    Mr. Johnson. With regard to the habeas remedy.
    Mr. King. Can you tell me how many have been successful of 
Guantanamo detainees with their habeas filing?
    Mr. Johnson. I don't have the exact number. The Chairman 
made a reference to it. I don't have the exact number offhand. 
I am happy to provide that to you.
    Mr. King. Let me just suspect--Mr. Kris, do you know that 
number?
    Mr. Kris. I don't know the exact number either, but what 
Chairman Nadler said sounded plausible.
    Mr. King. We are dealing with a universe, though, that 
would be not those that were picked up in Afghanistan or in--
probably in another terror-sponsoring country, but those that 
were picked up either on the streets or any in America, on U.S. 
soil, or--do we know of any that have been picked up outside of 
U.S. soil that were not on what we would consider to be a 
battlefield that have succeeded in a habeas filing?
    Mr. Johnson. The way I can answer that question for you, 
sir, is that the overwhelming majority of the Guantanamo 
detainees were captured in Afghanistan.
    Mr. King. Yes.
    Mr. Johnson. Okay. I don't have the exact numbers for you, 
but I----
    Mr. King. No, we will look that down--and I appreciate that 
answer.
    And I wanted to explore a little bit, too, the--Guantanamo 
Bay as a recruitment tool and Osama bin Laden using that as 
recently as 2008. I have seen a film that I believe they have 
used multiple times that is a film of Guantanamo detainees in 
orange suits that are seated with--I believe they are 
handcuffed with their hands perhaps in front rather than back. 
They show them being sat down all in a group, then back up 
again. Have you seen anything like that?
    Mr. Johnson. I am sure I have seen that film, yes, sir.
    Mr. King. Yeah, and it is--I know it is fairly general. But 
I will submit that that film was taken when their--on their 
arrival at Gitmo or prior to that rather than anything that is 
going on at Gitmo now.
    So I will suggest that whatever might happen with the 
closing of Gitmo, which I expect will happen by the date in the 
executive order, that it will not stop al-Qaida from using 
Gitmo as a recruiting tool, nor will they use--if we move them 
to a maximum security prison, since we all know that is--the 
human rights groups have already raised the issue and contended 
that they were inhumane at our Supermax prisons, we end up with 
the same circumstance.
    Have you contemplated that with regard to the national 
security question about the recruitment of al-Qaida?
    In other words, to put the--to compress this question down, 
does it really do us any good to close Gitmo if we are going to 
put people in maximum security prisons and have Amnesty 
International declare that they are in an inhumane situation? 
Isn't that also a useful tool for al-Qaida?
    Mr. Johnson. I would respectfully suggest to the Congress 
that it does make a difference that Guantanamo Bay has been 
allowed to become that recruitment tool, and we are determined 
to create an alternative situation that doesn't.
    Certain rallying cries get legs and some don't. And we know 
that al-Qaida has been able to use Guantanamo Bay very 
effectively, and we are determined to disable them from doing 
that. And the way to do that is to close this facility as a 
detention facility.
    Mr. King. Okay. Under this legislation that you discuss as 
part of your testimony, you testified that it would eliminate 
the utilization of any evidence that was gathered under--cruel, 
unusual and inhuman treatment I believe was the language.
    Now, does this bill, then--does it redefine terror--or, 
excuse me, does it redefine torture?
    Mr. Johnson. The Senate bill would prohibit use of 
statements taken as a result of cruel, inhuman, degrading 
treatment.
    Mr. King. Does it redefine, though, cruel, inhuman, 
degrading treatment?
    Mr. Johnson. I don't believe that it puts a definition on 
that phrase.
    Mr. King. Okay.
    Mr. Kris, do you----
    Mr. Kris. I believe that is right. I mean, the Military 
Commissions Act--the prior legislation or the--legislation had 
prohibited admission of statements obtained by torture.
    This bill goes further following the rule change that Mr. 
Johnson referred to in prohibiting admission of statements 
obtained by cruel, inhuman, degrading treatment. I don't think 
it tries to define that term.
    But there is----
    Mr. King. I appreciate that.
    I saw that light change immediately upon the ringing of the 
bell. But I--could I, Mr. Chairman, be indulged for 15 seconds 
to conclude a question? Thank you.
    Mr. Nadler. [Off mike.] [Laughter.]
    Mr. King [continuing]. What I really am trying to find out 
here is is the meaning--is waterboarding affected by any of the 
language that we have discussed here? Is there any change in 
any language that might broaden this out to include 
waterboarding where it might have otherwise been interpreted to 
not be cruel, inhuman or degrading treatment?
    Mr. Kris. Well, in the previous Administration, I think 
there was a reluctance to treat or define waterboarding as 
torture. I think in this Administration there has been no such 
reluctance.
    And so that would fall under the--as this Administration, I 
think, interprets torture, waterboarding would be out.
    Mr. King. But it has not been redefined in law.
    Mr. Kris. Well, the torture statute remains the same as it 
has been.
    Mr. King. Yes. And that is what I wanted to clarify. Thank 
you.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    The gentleman from Massachusetts is recognized.
    Mr. Delahunt. Thank you.
    And again, welcome to both of our witnesses.
    It is good to see you again, Mr. Kris.
    Mr. Kris. Thank you.
    Mr. Delahunt. You know, Mr. Johnson, you used the term 
``captured'' at or near the battlefield. I think that was 
alluded to by my friend from Iowa.
    Well, I mean, the reality is we can--I think it is 
important that we understand in many cases the term ``capture'' 
was a transfer from Pakistani intelligence and authorities to 
United States authorities. There was an intervening event. Is 
that a fair statement?
    Mr. Johnson. It is true that detainees come into U.S. 
detention through a variety of means.
    Mr. Delahunt. And I know this is not your intention, but to 
suggest that they were captured on or near the battlefield I 
would respectfully suggest is--or could be interpreted multiple 
ways, some of which are inaccurate.
    Let me cite the example again of the Uighurs. I am sure you 
are aware that they were captured, quote/unquote, or 
apprehended, taken into custody in Pakistan.
    They were then taken--after fleeing from Afghanistan, where 
they were residing because of the fear of Communist Chinese 
persecution, and that when they crossed the Pakistani border, 
they encountered a tribal group that provided them sustenance 
and led them to a Pakistani jail.
    And then the leaders of that particular tribal group were 
given $5,000 for each of those particular detainees. I am 
referring to four of them right now. Does that comport with 
your understanding of the situation?
    Mr. Johnson. I am not in a position to disagree with your 
characterization, Congressman.
    Mr. Delahunt. Okay. So I just put that out there because I 
think it is very important that we have to understand where our 
information is coming from.
    In these particular cases, I would suggest it is the 
Communist Chinese intelligence services and Pakistanis who sold 
them for $5,000 each. So I think it is easy to be on this side 
of the dais and talk about being captured at or near the 
battlefield.
    And that leaves an impression that they were out there with 
guns and hiding in the hills and shooting at Americans, when 
that is simply not the truth according to very, very solid 
information on the American side.
    Mr. Johnson. Congressman, let me--may I answer?
    Mr. Delahunt. Sure, please.
    Mr. Johnson. Yes. As you know, the district court ordered 
that the Uighurs be released----
    Mr. Delahunt. Right.
    Mr. Johnson [continuing]. Last year.
    Mr. Delahunt. Right.
    Mr. Johnson. I would like to think that given the 
circumstances we in this Administration, in our review process, 
would have got to the same result on our own.
    As you know, we have spent an enormous amount of time 
trying to find a country----
    Mr. Delahunt. And I know that very well, and I congratulate 
you----
    Mr. Johnson [continuing]. Successful to a limited extent.
    Mr. Delahunt. And I I have to tell you, by the way, that a 
Bush undersecretary, an undersecretary that was intimately 
involved in this, appeared before the Committee which I Chair 
over on the Foreign Affairs side that stated unequivocally that 
these Uighurs were wrongly imprisoned and that their entire 
story constituted a tragedy.
    But some, for whatever their motives may be, continue to 
want to create a fear, if you will, among the American public. 
And I think that does a huge disservice to what you are trying 
to accomplish.
    Having said all that, let me pose this question. And I know 
the task force is reviewing various plans, and I understand the 
difficulties.
    Is it still on the table that some--a few--detainees who 
have been cleared--that it could be, if you will, adjudicated--
were never involved in any way threatening or--in conduct or 
behavior deleterious to the United States might be resettled 
into the continental United States? Has that been taken off the 
table or is that still----
    Mr. Nadler. The gentleman's time is expired, but the 
witness may answer the question.
    Mr. Johnson. Let me answer the question this way. Whatever 
decisions are being made, are being made, I believe, consistent 
with national security, consistent with public safety, the 
safety of the American people and the rule of law.
    We haven't, at this point, so far as I am aware, made such 
a determination. There have been a number of transfer decisions 
made which I think I alluded to in my prepared statement, and 
we are more than halfway through the review process.
    But I want to assure everybody here that whatever decisions 
we make we make consistent with national security and public 
safety.
    Mr. Delahunt. I would encourage consultation with the 
United States Congress, the appropriate Committees of 
jurisdiction.
    Mr. Nadler. Thank you.
    We will have a second round of questioning, but since for 
that--after the votes. But since for that second round of 
questioning Mr. Johnson will not be here, I gather, since he 
has to leave, we will start the second--I am sorry, we will 
start----
    Mr. Johnson. Congressman, I am happy to stay as long as you 
want me to stay, sir.
    Mr. Nadler. Oh, very good. Thank you.
    I will recognize the gentlelady from Texas.
    Ms. Jackson Lee. Mr. Chairman, thank you, and thank you to 
your witnesses. We know that military commissions are--
historically have been established where jurisdictional gaps 
exist, but they have not been--and I hope both of you agree--
been created to obliterate or to ignore the importance of due 
process.
    So I would like to, first of all, quickly ask, do you have 
at Guantanamo Bay, to your knowledge, any minors, underage 
detainees, at this point?
    Mr. Johnson, I am sorry?
    Mr. Johnson. I can think of at least two, including one 
referred to by the Chairman in his opening remarks, that the 
evidence suggests were teenagers at the time they were 
captured.
    Ms. Jackson Lee. And during the course of your tenure, did 
you prosecute underage detainees through the military 
commissions?
    Mr. Johnson. Are you asking had we?
    Ms. Jackson Lee. Yes.
    Mr. Johnson. The two detainees that I am referring to have 
pending military commissions cases against them.
    Ms. Jackson Lee. But previously there were 800, 240 are 
left. Did the military commissions prosecute underage detainees 
over the course of the 800 that were detained?
    Mr. Johnson. I am sorry, I didn't hear the number, ma'am.
    Ms. Jackson Lee. I speculated that there were 800 
detainees. Over the course of the detainees, did you prosecute 
underage detainees?
    Mr. Johnson. There are two cases that I just referred----
    Ms. Jackson Lee. Only two out of the 800?
    Mr. Johnson. There have been three completed prosecutions 
so far. I don't believe any of the three completed involved 
detainees who were teenagers at any point. I don't believe that 
to be the case.
    We have seven pending cases right now. One of them the 
Chairman referred to.
    Ms. Jackson Lee. And only two of those are minor?
    Mr. Johnson. That is my understanding, yes.
    Ms. Jackson Lee. Thank you. Let me just quickly go to 
this----
    Mr. Johnson. At some point during their detention they were 
minors--you know, the evidence suggests.
    Ms. Jackson Lee. You testified--and if this was a question 
that has been asked, let me just quickly ask it again--at 
several hearings that the Administration intends to assert its 
authority provided by the AUMF passed by Congress to detain 
individuals deemed dangerous for the duration of these 
hostilities.
    What, generally speaking, is the class of individuals who 
might possibly be detained under this authority regardless of 
the opportunity to access the criminal justice system?
    Who would fall under this category that would continue to 
be dangerous? And would they have any rights to appear before a 
commission or any other authority?
    Mr. Johnson. Well, as you know, the Boumediene case 
determined that the Guantanamo detainees have the right to 
habeas in Federal court.
    In addition to that, we in the Administration are 
developing a periodic review process with respect to any 
detainees who are in what the President refers to as the fifth 
category, people who are not prosecuted, not transferred, not 
released and, for reasons of national security, public safety, 
the government determines should be detained for reasons of--
under law of war authority.
    And that category of detainees we are determined to develop 
a process of periodic review where they are given some access 
to evidence, some ability to contest what the government says 
about them. And as part of our detention policy review, we are 
developing that right now.
    Ms. Jackson Lee. If a detainee was to go through the 
Federal court system and be criminally acquitted, are they 
released or is there an additional detention that you would 
request?
    Mr. Johnson. Well, as I have stated previously, if we, the 
government, determine that there is law of war authority to 
detain a person for reasons of national security, safety and 
because of a threat assessment, that authority, we believe, 
exists--and I am answering just in terms of legal authority, 
not what we would actually do.
    As a matter of legal authority, that would be true 
irrespective of what happens in any criminal prosecution that 
Mr. Kris might bring or in a military commission. Now, whether 
we would actually do that, in my view, is an entirely separate 
matter.
    And in the three cases that have been completed, two 
received less than life sentences, and they have been 
transferred. They are no longer in U.S. detention.
    Ms. Jackson Lee. Well, we thank you for your service. But 
as I am listening to you--and maybe as this commission finishes 
its work--it looks like it would be completely complex and 
perplexing to try to close Guantanamo Bay as the President has 
directed if we have continuing languishing individuals who have 
to be detained.
    Maybe we can pursue that later. But I thank you very much 
for your service.
    Mr. Nadler. The gentlelady's time has expired. I thank the 
gentlelady.
    And as you notice, we have a series of votes again. There 
is 1 minute and 56 seconds left on this first vote. There are 
three 5-minute votes after this. So we will adjourn--or recess, 
I should say. We will recess probably for about 20 minutes.
    I urge Members of the Committee to return as promptly as 
possible after the commencement of the last vote.
    I again apologize to the witnesses.
    And with that, the Committee stands in recess.
    [Recess.]
    Mr. Nadler. The hearing will reconvene, and I thank the 
witnesses again and apologize again. Hopefully this won't 
happen again.
    I recognize myself for a few minutes.
    Mr. Kris, one quick question, and then I would like to 
explore some of the Administration's additional suggestions on 
military commission----
    Mr. Kris. Yes.
    Mr. Nadler [continuing]. Reform. We requested that the 
Department of Justice produce the May 9 OLC legal opinion 
regarding application of the Constitution to military 
commissions.
    It is important that we have this as we are deliberating 
the reform. When do you think we might get that?
    Mr. Kris. I have to say I don't know, but I can certainly 
take it back and make clear that you want it quickly. This is 
a----
    Mr. Nadler. We do want it quickly. We are going to be 
debating the military commissions reform presumably in the 
context of the conference report on the DOD authorization bill 
which has now passed both houses, so we will have the 
conference report shortly. And if we get that OLC memo after 
the conference is over, it will be sort of----
    Mr. Kris. Less helpful.
    Mr. Nadler. Yes. Thank you.
    Now, Mr. Johnson, the Senate Armed Services Committee noted 
its concern with the difficulty that defense counsel has had 
obtaining adequate resources and ensuring learned counsel for 
capital cases.
    In his written submission, Colonel Masciola makes several 
recommendations. His first suggestion is that we amend the 
Military Commissions Act of 2006 to afford all counsel the 
``equal opportunity to obtain witnesses and other evidence,'' 
thus replacing the current assurance to defense counsel only of 
a ``reasonable opportunity.''
    So in other words, all counsel on both sides, prosecution 
and defense, would have equal opportunity to obtain witnesses 
and evidence, not simply the defense have a reasonable 
opportunity.
    This seems reasonable and important--in fact, crucial--to 
assuring a fair process. Can the Administration support that 
change?
    Mr. Johnson. Congressman, I have reviewed Colonel 
Masciola's submissions. I have met with him on several 
occasions to discuss the issue of resources, the ability for 
him to do his job. I have met with him with our judge advocates 
general of each service to ask him what we can do to help 
better support him.
    I have not had an opportunity to carefully consider Colonel 
Masciola's proposal. I think that there--I could foresee 
problems with codifying in the law in the abstract a 
requirement of equal access to witnesses, but I haven't had an 
opportunity to carefully study his proposal. And I would want 
to be sure I understood the nature of it before we put 
something like that into law.
    But I agree that we need to focus on defense resources, 
defense experience, defense training. One thing that I am 
particularly interested in ensuring is that our defense counsel 
in potential capital cases receive adequate training. There are 
standards by the American Bar Association.
    And I am particularly focused on making sure that in 
capital cases the JAGs we send down there to do this know what 
they are doing, because those are obviously high-stakes cases.
    Mr. Nadler. I appreciate that, but also they need the 
ability to get witnesses and other evidence. And again, this 
will probably come up in the context of the conference--in the 
conference deliberations, so you say you are considering that. 
I hope you consider it quickly before the conference convenes, 
which may be soon.
    Mr. Kris, you have testified the Administration supports 
the Senate amendment that would ban statements obtained through 
cruel, inhuman or degrading interrogation methods, but that the 
Administration would recommend a voluntariness standard that 
goes further that ``takes account of the challenges and 
realities of the battlefield and armed conflict.''
    Since the rationale of allowing flexibility for battlefield 
circumstances is difficulties caused by the heat of battle and 
the shared desire to ensure the safety of our troops, would you 
support or would the Administration support limiting in special 
circumstances consideration for military commissions to actual 
battlefield capture and otherwise requiring voluntariness under 
standards applied by our courts in criminal cases or by the 
courts martial--in other words, limiting that less exacting 
standard to actual battlefield captures?
    Mr. Kris. Sort of a battlefield carve-out from the 
voluntariness standard, is that what you are----
    Mr. Nadler. Yes.
    Mr. Kris [continuing]. Suggesting?
    Mr. Nadler. Yes.
    Mr. Kris. So----
    Mr. Nadler. In other words, you said that the--you said 
that the Administration would go further than the Senate----
    Mr. Kris. Yes.
    Mr. Nadler [continuing]. On the voluntariness standard----
    Mr. Kris. That is right.
    Mr. Nadler [continuing]. But they would have to take 
account of the challenges and realities of the battlefield and 
armed conflict.
    Mr. Kris. Yes.
    Mr. Nadler. So would you support--would the Administration 
support going all the way off the battlefield toward the same 
voluntariness standard that we have in, let's say, court 
martials, but having the taking account limited to battlefield 
situations?
    Mr. Kris. Yes, if I understand your question, the 
Administration's position is that the voluntariness standard, 
which is a due-process-based standard, is the appropriate 
standard, and our legal experts have made judgments about why 
the courts would likely impose that in any event.
    But we think that it is appropriate in thinking about that 
standard to take account of the realities of the battlefield 
and the military----
    Mr. Nadler. I understand that and I appreciate that. My 
question is that taking account, which is presumably a 
lessening of the standard--would you limit that to battlefield 
capture situations?
    Mr. Kris. Well, I want to----
    Mr. Nadler. Because presumably if you--if someone is not 
arrested in a battlefield situation, you don't have to take 
account of battlefield situations.
    Mr. Kris. Well, yes. I mean, I think the way to answer that 
is that the voluntariness test is really a totality of the 
circumstances test, and this--by that, I mean the voluntariness 
test that you apply on the streets of Newark, New Jersey as 
well as the voluntariness test that you apply in Tora Bora or 
somewhere else. It is a totality test.
    And so I really think that it is not so much a different 
test as it is a test that accounts for the environment and the 
circumstances in which the statement is taken.
    So I think the answer to your question is we are actually 
talking about a voluntariness test that is, in the abstract, 
the same but in its application would take account of the----
    Mr. Nadler. May be different, depending.
    Mr. Kris [continuing]. Of the facts, yeah.
    Mr. Nadler. Okay. And----
    Mr. Johnson. Congressman, can I help you there?
    Mr. Nadler. Sure.
    Mr. Johnson. Let me read you some language along the lines 
of what I think the Administration is considering in this 
regard for a voluntariness standard applicable for military 
commissions cases. And the precise wording may be changed, but 
you will get the concept.
    In determining whether a statement is voluntarily given, 
the military judge shall consider the totality of the 
circumstances, including, as appropriate, the details of the 
taking of the statement, accounting for the circumstances of 
the conduct of military and intelligence operations during 
hostilities; the characteristics of the accused, such as 
military training, age and education level; and the lapse of 
time, change of place or change of identity of the questioners 
between the statement sought to be admitted and any prior 
questioning of the accused.
    Mr. Nadler. Okay. Thank you.
    Mr. Kris, the definition of unprivileged enemy belligerent 
in the Senate bill was amended on the floor of the Senate to 
include members of al-Qaida, without any--without requiring any 
showing that the individual actually engaged in or supported 
hostilities.
    What is the Administration's position on this change? Is it 
legally defensible to use membership alone, and how would that 
be shown if it is?
    Mr. Kris. Well, as I understand it, Congressman, this is a 
question of personal jurisdiction. And so you would have to 
show an actual law of war violation in order to bring a 
successful prosecution for that law of war violation in a 
commission or, if you were going to prosecute in a criminal 
court, you would have to show a crime there.
    Mr. Nadler. Membership in a terrorist group like al-Qaida 
would not be----
    Mr. Kris. I don't think----
    Mr. Nadler [continuing]. Would not be----
    Mr. Kris. I mean, as I understand that--that amendment, it 
is not meant to create an offense based on membership but that 
it is a jurisdictional provision. We are still, as an 
Administration, finalizing our position on that.
    But I will say that, for example, the authorization to use 
military force refers to people who are part of al-Qaida, which 
is at least similar to the member standard.
    Mr. Nadler. And is it defensible, in your opinion, to use 
membership alone? And how would that be shown?
    Mr. Kris. Well, again, as a jurisdictional matter, I think 
it probably is defensible, subject to the caveat that we are 
still finalizing our position and, again, with the emphasis 
that to show a conviction and get a sentence you would have to 
show a violation.
    Membership could be shown in a variety of ways. I doubt you 
would--you sort of have to have a formal card-carrying member 
test.
    I mean, membership in an international terrorist group, for 
example, is currently in Federal law, in the FISA statute--you 
would show it, I think, in the traditional kinds of ways--
knowing, joinder and affiliation with the group.
    Mr. Nadler. Thank you.
    And finally, either one of you, could you highlight, 
please, any other changes to the Senate amendments that you 
think we should be considering?
    Mr. Kris. I can run down a quick list if you want of 
several, or--Jeh, I am sorry about that.
    Mr. Johnson. Please.
    Mr. Kris. We have talked about the voluntariness standard. 
We have a position about the offensive material support for 
terrorism as a law of war violation. It is in our written 
testimony.
    Have some slight differences, I think, with respect to 
appellate review. We are in favor of fact and law review and 
the role of civilians, but I think--and this is really for Jeh 
to elaborate on more, but have some concerns about the Court of 
Appeals of the Armed Forces doing that kind of review.
    We favor sunset provisions----
    Mr. Nadler. You would favor it going straight to a circuit 
court?
    Mr. Kris. No. Again, Jeh should probably talk about it, but 
we would go to the service court.
    Mr. Johnson. It would be a--we actually favor the current 
structure that exists in the current military commissions law--
in other words, trial court, court of military commissions 
review, D.C. circuit, Supreme Court, but with an expanded scope 
of review to encompass both facts and law.
    Mr. Kris. It is a fairly modest--as I say, we support a 
sunset. I don't think that is in the bill.
    This is related to the material support provision, but if 
it is out, then certainly I think we would prefer a declaration 
about the offenses there being law of war offenses, to deal 
with any ex post facto concerns.
    And then we have a slight difference on hearsay. And then, 
as I said, we are still sort of finalizing----
    Mr. Nadler. And you can submit all that. That is in 
writing.
    Mr. Kris. Yes. I don't want to filibuster you. I am sorry 
to----
    Mr. Nadler. No, that is all right. Well, my question 
inadvertently almost asked for a filibuster, but I don't want 
one. Thank you.
    My time has expired.
    The gentleman from Iowa?
    Mr. King. Thank you, Mr. Chairman.
    I would ask Mr. Johnson if you could restate again or read 
to the Committee the exceptions that may be considered on 
evidence gathering, as part of it that I heard was it would be 
evaluated as to what kind of duress the accused might be under. 
That was an interesting--is that in your written testimony and 
I missed it?
    Mr. Johnson. Well, first of all, I am happy to submit it 
for the record.
    Mr. King. I would ask that you do that and unanimous 
consent that--well, it already is in the record because you 
read it, but----
    Mr. Johnson. Yes. Would you like me to re-read it?
    Mr. King. I would appreciate that.
    Mr. Johnson. Yes. In determining whether a statement is 
voluntarily given, the military judge shall consider the 
totality of the circumstances, including, as appropriate, the 
details of the taking of the statement, accounting for the 
circumstances of the conduct of military and intelligence 
operations during hostilities; the characteristics of the 
accused, such as military training, age and education level; 
and the lapse of time, change of place or change of identity of 
the questioners between the statement sought to be admitted and 
any prior questioning of the accused.
    Mr. King. Okay. Thank you. And that is just an interesting 
string there, and so it raises a number of questions in my 
mind, and one of them would be if the accused statement changes 
from the time that they are first interviewed--I will use that 
term--to the time they go to trial, doesn't this language open 
it up so the judge can consider that and consider the first 
statement that this accused made--it might be under duress of 
some type?
    Mr. Johnson. Well, that is an interesting question. I know 
from my time as a prosecutor--and Mr. Kris can help me out 
here--that it is--and I am not sure how this would shake out in 
the military commissions context.
    I know that from my time as a prosecutor, if a statement is 
suppressed because it was not voluntary, or it was not taken in 
accordance with law, and there is a subsequent statement made 
by the defendant that is inconsistent with the suppressed 
statement, the government might have the opportunity to then 
offer into evidence the suppressed statement as a prior 
inconsistent statement.
    Maybe David can----
    Mr. King. Or the judge might throw it out on--might be able 
to take it into consideration and throw the original statement 
out and declare it to be likely suppressed because of the 
inconsistency between the original statement by the accused and 
the statement at the time of the trial.
    Mr. Kris?
    Mr. Kris. There are different rules of admissibility when a 
prior statement is used for impeachment as an inconsistent 
statement, as opposed to affirmative evidence.
    But the language that Jeh read I think is an effort to sort 
of codify in statute the Supreme Court's holding in Colorado v. 
Connelly, where you have a first statement that, let's assume, 
is taken in a way that is--makes the statement inadmissible and 
then a second statement taken under different circumstances 
which, standing alone, would be fine but you still have to 
litigate the question of whether the first has tainted the 
second.
    And there is law on how that taint is dissipated, making 
the second statement admissible----
    Mr. King. It raises a question of law, which would be the 
discretion of the judge, as I understand this, in the final 
analysis.
    And if I listen to the string of this, the age of the 
defendant, the circumstances, the battlefield circumstances, 
the education, the training--can you describe for this 
Committee a scenario by which, let's see, one might be picked 
up on the battlefield, and those circumstances would be tight 
enough that the case was not in jeopardy and left to the 
discretion of a Federal judge?
    Mr. Kris. Well, I mean, it is not unbounded discretion, of 
course, in the military judge here. But I think the concept----
    Mr. King. But this language prescribes discretion, as I 
understand it.
    Mr. Kris. I beg your pardon?
    Mr. King. This language prescribes discretion, as I 
understand it.
    Mr. Kris. I think it guides the discretion of the judge, or 
the judge, in applying the legal standard of voluntariness, 
which has a very extensive pedigree in the case law, as you 
know, under the fifth amendment--I think maybe the concept that 
underlies the first part of that language is the idea of a 
coerced confession, of an involuntary confession, is predicated 
on some kind of government overreaching, improper conduct vis-
a-vis the admissibility of the statement.
    Mr. King. Okay. I think that is a good place to leave 
that----
    Mr. Kris. Okay.
    Mr. King [continuing]. That particular question. I think 
that is an important point.
    And then I would like to go to the question of is the 
Administration's position--does the Administration support 
reading Miranda rights to enemy combatants when they are picked 
up on the battlefield?
    Mr. Johnson. No. No, and I am happy to submit a letter for 
the record that I wrote to the Chairman of the House Armed 
Services Committee last week where, in response to inquiries 
from that Committee, I stated pretty unequivocally that it is 
not the mission of the military to read people they capture 
Miranda rights.
    Mr. King. But we do know that is taking place.
    Mr. Johnson. I am happy to give you that for the record.
    Mr. King. But you do know that is--it is taking place in 
the battlefield, within--very recently, within the last couple 
of months.
    And so under what circumstances is the military reading 
Miranda rights to those detainees that they are picking up in 
places like Afghanistan?
    And I would point you to the congressional record that 
Congressman Mike Rogers from Michigan has introduced within the 
last couple of months as an example.
    Mr. Kris. Congressman, can I just make a couple of points 
in response to that?
    Mr. King. Please.
    Mr. Kris. The first is with respect to the admissibility 
standard, the Administration is supporting the rule under which 
Miranda would not be required for admissibility of statements. 
So there is no ambiguity on our position with respect to 
whether Miranda is required to admit these statements in a 
military commission.
    With respect to the actual practice, in addition to the 
letter that Mr. Johnson wrote himself, there is a letter dated 
July 21 from the attorney general to the House Armed Services 
Committee that says--and I will quote you the relevant 
sentence; I won't read a whole long part of it, but, ``the 
warnings''--Miranda warnings--``are given in locations removed 
from the battlefield and only after the military's intelligence 
gathering and force protection needs have been met.''
    So I think there is some confusion about what the ground 
truth is here. But the attorney general, Director Mueller and 
Mr. Johnson have all written letters that I think, if you take 
a look at them, will clear it up. At least I hope they will.
    Mr. King. All right.
    Mr. Johnson. The other thing I would add, Congressman, is 
that the military commissions bill that the Senate passed 
expressly excludes Article 31 of the USMJ, which is the Miranda 
requirement, from any application to military commissions.
    Mr. King. Thank you for that clarification. Thank you for 
your testimony.
    Thank you, Mr. Chairman. I yield back.
    Mr. Nadler. Thank you.
    Mr. Delahunt is recognized.
    Mr. Delahunt. You know, we continue to hear the term 
``picked up on the battlefield.'' How many of the 800 detainees 
at Guantanamo were captured by American soldiers, if you know, 
on the battlefield, out of the--I think it is 740 or 790?
    Mr. Johnson. I don't have the exact number for you, 
Congressman. We can give you that for the record.
    Mr. Delahunt. If I told you maybe 15 or 20, would that 
sound outrageously minimal?
    Mr. Johnson. Fifteen or 20?
    Mr. Delahunt. Or 20, captured by Americans.
    Mr. Johnson. I don't have the exact numbers for you.
    Mr. Delahunt. American soldiers.
    Mr. Johnson. I don't have the exact numbers for you.
    Mr. Delahunt. Okay. I think that is very important, because 
we are going to continue to hear as this debate goes on about 
being picked up on the battlefield. And I guess it is my 
information, and I think it has been sufficiently corroborated, 
that it is a minuscule number.
    In fact, if either one of you know, how many were picked up 
via the bounty program that was initiated by the Bush-Cheney 
administration?
    Mr. Johnson. I am not sure of the number.
    Mr. Delahunt. Couple of hundred, maybe?
    Mr. Johnson. I wouldn't want to speculate, sir.
    Mr. Delahunt. Okay.
    Mr. Kris, do you know?
    Mr. Kris. No, I don't know the number. I mean, I will say I 
think your basic point is well taken, and I think it is similar 
to a point that Chairman Nadler made, which is that, if I 
understand you--maybe you are making only a narrower point, in 
which case--but this is a different kind of conflict in some 
ways, because the enemy is not wearing uniforms, and there will 
be, I think, perhaps more challenge in trying to determine 
exactly who is who.
    Mr. Delahunt. Right.
    Mr. Kris. And I think it is incumbent on us to have 
procedures that are appropriate to the challenge of that 
determination.
    Mr. Delahunt. I concur with that. And again, let me be very 
clear, too. I applaud what you are trying to accomplish. I 
might have some disagreements in terms of degree, but I know 
what you are trying to do.
    You inherited a mess. And it is difficult picking up after 
a mess is left on your lap. But we owe it to the American 
people, to our justice system, to attempt to do that.
    Speaking of messes, where do we stand with the CSRTs?
    Mr. Johnson. They were suspended in January as part of the 
review process.
    Mr. Delahunt. Well, again, what I found fascinating with 
the CSRTs--and for those who don't like the use of acronyms, 
that is Combat Status Review Tribunals--which I think goes to 
the Chairman's question about, you know, how do we initially 
filter them or determine that they are combatants.
    And it is my understanding that the mechanism that we used 
was Combatant Status Review Tribunals----
    Mr. Johnson. Well, for the----
    Mr. Delahunt [continuing]. Along with ABRs or ARBs.
    Mr. Johnson. ARBs, Administrative----
    Mr. Delahunt. ARBs.
    Mr. Johnson [continuing]. Review Boards, yes.
    Mr. Delahunt. Right. And for the record, I wanted to note 
that in hearings before the Committee which I Chaired there 
were a number of military prosecutors that testified that 
described that entire process as it was--as it existed as a 
sham, a joke and a fraud being perpetrated.
    Now, these men were, in my judgment, courageous. I am sure 
that there was a lot of dissatisfaction with those opinions 
being expressed. But they were members of the American 
military, and they were attorneys that participated in the 
process.
    They weren't sitting here in comfy, cozy Room 2141 making 
pronouncements and preachments and reaching conclusions that 
varied significantly from what the reality was. And the reality 
was that that was a system that did not reflect well on the 
American justice system.
    Have you been able to design or develop, as we look 
forward, a new screening mechanism--a grand jury, if you will, 
to use a legal term?
    Mr. Johnson. We are----
    Mr. Delahunt. Are you still in the process?
    Mr. Johnson. Well, let me make a couple of points. First, 
when the process--the CSRT process for the Guantanamo detainees 
was suspended in January, what we did as part of the executive 
order mandate was to begin ourselves in the Administration a 
detainee-by-detainee review of every case----
    Mr. Delahunt. Good.
    Mr. Johnson [continuing]. Which we are more than halfway 
through right now, from--we are looking at the complete picture 
with regard to every single detainee, including any who went 
through the CSRT process and are still detained.
    We are developing a periodic review process and a process 
for initial screening. There is an initial screening process 
that occurs irrespective of CSRTs, that occurs overseas in 
Afghanistan when people are captured there. There is a board 
that looks at them within a matter of days or hours, and that 
process is going to continue.
    We call it a 190-8 process. And that is something that is 
standard military. But we are devising----
    Mr. Delahunt. At least it has a number now, Mr. Chairman.
    Mr. Johnson. There is a number on it, yes, sir. But we are 
devising a periodic review process.
    Mr. Delahunt. And before the Chairman hits the gavel, if I 
could ask for another 30 seconds----
    Mr. Nadler. Without objection, the gentleman is granted 30 
seconds.
    Mr. Kris. Just one other point, I think, to make is that 
one of the five rule changes that the Pentagon--the government 
adopted on its own was to change the reliance on the CSRTs when 
determining the jurisdiction of the military commission, and 
that is a--another change that I think----
    Mr. Delahunt. That is well done. And the Chair and I have 
had a ongoing, continuing interest in a case involving a 
Canadian citizen who happened to be Syrian by birth by the name 
of Maher Arar.
    And when I hear issues regarding words such as 
``diminishing our national security,'' let me put forth that I 
have had multiple conversations with Canadian officials who 
have expressed reluctance now to cooperate with the U.S. in 
terms of intel because of the injustice that was done to that 
individual.
    We intend to have a hearing once more on Maher Arar. I am 
going to request you, Mr. Johnson, and you, too, Mr. Kris, go 
back, look at the records, and let's get those who made the 
decisions and signed off before this Committee, because I 
believe ardently that it is the responsibility of these 
Committees to do the oversight that is necessary to repair the 
damage that was done in the preceding Administration to 
America's image.
    With that, I yield back.
    Mr. Nadler. I thank the gentleman.
    Let me just amplify, we--as the gentleman said, we have 
held joint hearings on that case. That is the case where 
intelligence from Canada was used by the United States 
ultimately to highly improper purposes. Canadian investigations 
revealed that.
    Our government, to this day, has refused--well, I don't 
know that--we can ask the new Administration--but refused to 
acknowledge any error, when error was manifest and injustice 
was manifest.
    And the Administration should take a careful look at the 
Maher Arar----
    Mr. Delahunt. Mr. Nadler, you know, I think it is important 
to note that the Canadians instituted a independent commission 
that spent 2 years that resulted in the total exoneration of 
Mr. Arar and, in fact, compensated him in the----
    Mr. Nadler [continuing]. The Canadian Parliament voted a 10 
million, I think it was, dollar indemnity--for their--part in 
the injustice done to him.
    And I have communicated to the--the two of us have 
previously communicated, asking for a review of this and for 
information, so I hope you take that back and have it done.
    I want to thank you, the two witnesses on this panel. Thank 
you very much for your indulgence and for your testimony.
    I would ask the second panel to take its place.
    And while they are taking their place, I will introduce the 
second panel. Colonel Peter Masciola--is that Maskiola or 
Masciola?
    Colonel Masciola. Masciola.
    Mr. Nadler. Masciola. Colonel Peter Masciola is serving an 
active-duty tour as the chief defense counsel, Office of 
Military Commissions, where he is responsible for overseeing 
the defense of all detainees at Guantanamo accused of war 
crimes involving alleged terrorism against the U.S. under the 
Military Commissions Act of 2006.
    He oversees a joint total force staff of 95 military and 
civilian lawyers, paralegals, investigators, intelligence 
analysts and administrative officers providing full-spectrum 
trial defense services to Gitmo detainees charged under the 
MCA.
    During his 25 years of distinguished military service, 
Colonel Masciola has served as the ANGJA assistant to the 
commander, first Air Force commander in chief, C.C.--I assume 
it means that--Air Force North, Tyndall Air Force Base, 
Florida; principal legal advisor to the chief of the 
Directorate of Total Force Integration H.Q. USAF/A8F; H.Q. at 
SJA; H.Q. Massachusetts Air National Guard; SJA 104th Fighting 
Wing, Barnes Air National Guard Base, Massachusetts; supported 
deployment operations in Iraq and Afghanistan; and deployed 
with his A-10 Fighter Wing during the Bosnia conflict.
    Commissioned in January 1984, Colonel Masciola served 10 
years in active duty, holding progressively senior positions, 
including branch chief, Air Force medical tort claims and 
litigation; medical law consultant; circuit trial counsel; area 
defense counsel; and assistant SAJ--SJA.
    In civilian life, Colonel Masciola is in the private 
practice of law. He received his juris doctorate from the New 
England School of Law in 1983.
    David J.R. Frakt was the lead defense counsel in the Office 
of the Chief Defense Counsel, Office of Military Commissions in 
Washington, DC and Guantanamo Bay, Cuba. He was the sole 
defense counsel in U.S. v. Ali Hamza al-Bahlul, one of only two 
detainees to be tried by military commission.
    He was also the lead defense counsel in U.S. v. Mohammed 
Jawad, one of two child soldiers facing trial by military 
commission. He continues to represent Mr. Jawad.
    He is an associate professor of law and director, Criminal 
Law Practice Center, Western State University College of Law. 
He is a graduate of the Air Command and Staff College and the 
Squadron Officer's School. He holds a J.D. from Harvard Law 
School and a B.A. in history from the University of California, 
Irvine.
    Steven Engel is a partner in the Washington, D.C. office of 
Dechert LLP. Prior to joining Dechert, Mr. Engel served as a 
deputy assistant attorney general, the Office of Legal Counsel 
of the Department of Justice.
    While at the Office of Legal Counsel, Mr. Engel provided 
legal advice to the executive branch on matters relating to the 
detention and prosecution of the Guantanamo Bay detainees, and 
he worked with Congress in establishing the statutory military 
commission system following the decision of Hamdan v. Rumsfeld.
    Mr. Engel is a graduate of Yale Law School. He obtained a 
master's in philosophy from Cambridge University and an A.B. 
from Harvard College. He served as a law clerk to Justice 
Anthony Kennedy of the Supreme Court and to now-Chief Judge 
Alex Kozinski of the U.S. Circuit Court of Appeals for the 
Ninth Circuit.
    Eugene Fidell is senior research scholar in law and the 
Florence Rogatz Lecturer in Law at Yale Law School. He is also 
a counsel at the law firm Feldesman Tucker Leifer Fidell LLP. 
He earned his J.D. from Harvard Law School and, perhaps most 
importantly, is a graduate of Queens College.
    Mr. Fidell served as a judge advocate in the Coast Guard 
from 1969 to 1972 and in private practice has represented 
members of each branch of the armed services. He has also 
represented print and electronic media in military justice 
matters.
    He has written extensively on military law and has taught 
the subject at Yale and Harvard Law Schools and the Washington 
College of Law, American University, where he is an adjunct 
professor of law.
    I must say that I assume that reference to Queens College 
was put in because one of our counsels is from Queens.
    I am pleased to welcome all of you. Your written statements 
in their entirety will be made part of the record. I would ask 
each of you to summarize your testimony in 5 minutes or less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains, the light will switch 
from green to yellow and then red when the 5 minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses.
    [Witnesses sworn.]
    If you would please stand and raise your right hand to take 
the oath.
    Do you swear or affirm under penalty of perjury the 
testimony you are about to give is true and correct, to the 
best of your knowledge, information and belief? Thank you.
    Let the record reflect that the witnesses answered in the 
affirmative.
    You may be seated. I will ask each of you to testify in 
less than 5 minutes. We expect, I hope, to be able to get 
through at least the testimony before the next series of votes.
    Colonel Masciola?

 TESTIMONY OF COLONEL PETER R. MASCIOLA, USAFG, CHIEF DEFENSE 
        COUNSEL, OFFICE OF MILITARY COMMISSIONS--DEFENSE

    Colonel Masciola. Chairman Nadler, distinguished Members of 
the Committee, I want to thank you for this opportunity to come 
here and testify in front of you about what I believe is as 
important as some of the rule changes that you have discussed 
in order to make any commission system fair and just, not only 
to the system but to the accused that--they purport to trial.
    In order to do that, I first want to state for the record 
that while I oversee all of the defense services at Guantanamo 
Bay, Cuba, I do not represent any specific detainee, unlike 
Major Frakt, who is one of the counsel who works in my office.
    Because I don't represent any specific detainee, I am going 
to limit my testimony to adequate resources here today and not 
make any opinions about whether or not military commissions 
should go forward or any particular forum that any detainee 
should be tried upon.
    Having said that, I want to follow up on a previous 
question asked to Mr. Johnson about adequate resources for the 
defense, and that is the question, Chairman Nadler, that you 
had stated in regards to equal access to both witnesses and 
evidence.
    Sir, that is already the codified standard under the 
Uniform Code of Military Justice. And what I am simply asking 
for--and along a lot of the points that I made in writing--is 
equal access to witnesses and justice in the concept of 
equality of--I am sorry--to witnesses and evidence, and the 
concept of equality of arms, something that is woefully missing 
and inadequate in the resourcing under the present Military 
Commissions Act.
    And I point to the disparity between not only the UCMJ but 
the Federal system, where adequate resourcing is mandated by 
statute under the Criminal Justice Act.
    I point to several pieces of--of evidence, if you will, or 
documents, exhibits, that I have included in my written 
testimony to highlight the inadequacies of resourcing because 
of this unequal access to witnesses and evidence.
    First, one of the exhibits are the convening authority's 
rulings on 56 requests by counsel who work in my office for 
expert witnesses. Of those 56 requests, 47 were denied right 
off the bat. And most of them--10, in fact, in the death 
penalty cases--five death penalty cases--involved mitigation 
experts.
    One case, the Ghailani case, which was recently moved to 
Federal district court, which I submitted Exhibit B, shows that 
as soon as Mr. Ghailani was indicted and arraigned in Federal 
district court, the judge, ex parte and before even requests 
were made, subsequent requests were made by the defense 
counsel, granted three experts--not only a mitigation expert, 
but an investigator, and an intelligence officer, right away. 
That is the kind of requests that were being denied routinely 
by the convening authority.
    I would like to submit, and I have submitted in writing, 
that the whole model of the convening authority doesn't work in 
the military commission system. It is based on commander 
justice, commander justice who has an interest in the whole 
part, including being fair to the accused and good order and 
discipline in their units.
    There is no such analogy here. Alleged al-Qaida, alleged 
Taliban, do not belong to the convening authority's unit. In 
fact, the good order and discipline of JTF Guantanamo, the 
detention task force, does not come under the command of the 
convening authority.
    There is no reason that the defense resources should also 
come under the convening authority because the convening 
authority, unlike the commander under the military justice 
system, does not have the same interest that justice be done 
for that accused member of their unit. And the whole unit is 
looking at whether justice is done.
    I submit that I have in my written material made specific 
recommendations as to the language that would be amended for 
both statutory and regulatory changes that would change the 
convening authority and have a more fairer system to the 
defense that would adequately resource the defense.
    I would also like to point out the change in the death 
penalty cases that Mr. Johnson was saying. Yes, the memo that I 
submitted here and the prior memos I submitted to him do 
address those resources.
    The death penalty counsel--he mentioned training. Training 
is not enough in order to comply with the ABA standards and the 
standards--federal--for learned counsel. Unfortunately, the 
military doesn't have a death penalty bar because we don't have 
that many death penalty cases, so we don't have experienced 
military counsel in my office who are death-penalty qualified.
    We propose under the new system that that be contracted out 
until the military counsel get their--I am sorry, sir.
    We propose that a system be set up where death-penalty-
qualified counsel in death penalty cases can be contracted, 
similarly as they are done in the Federal district courts and 
as was done initially in--when the Ghailani case was 
transferred there.
    [The prepared statement of Colonel Masciola follows:]
                Prepared Statement of Peter R. Masciola



                               EXHIBIT A



                               EXHIBIT B



                               EXHIBIT C



                               EXHIBIT D



                               __________

    Mr. Nadler. Thank you, Colonel.
    Major Frakt?

   TESTIMONY OF MAJOR DAVID J. R. FRAKT, USAFR, LEAD DEFENSE 
        COUNSEL, OFFICE OF MILITARY COMMISSIONS--DEFENSE

    Major Frakt. Thank you, Chairman Nadler, Mr. King, Mr. 
Delahunt. Thank you for the opportunity to testify here today.
    And I particularly appreciate the comments of Chairman 
Nadler regarding my client, Mohammed Jawad, and the injustice 
that has been done to him.
    And I did want to inform the Committee that earlier today 
in the Federal district court Judge Huvelle, with the 
acquiescence of the Department of Justice, granted the writ of 
habeas corpus and ordered Mr. Jawad to be released after 
notifying Congress in accordance with a provision of the 
Supplemental Authorization Act from earlier this summer.
    So after nearly 7 years, my client, an innocent man, a 
teenager, an adolescent boy who was brought to Guantanamo on 
the basis of tortured statements, will soon be free.
    How did we get to this point? How is it possible that such 
a thing could happen in the United States, that justice could 
be delayed and denied for so long?
    And his case is a useful example of why we need to 
carefully consider whether we should continue with military 
commissions and, if so, why they need to be drastically 
reformed, far beyond what has been approved in the Senate 
National Defense Authorization Act.
    We have to go back to the original purposes of the military 
commissions under the Bush administration. The purposes there 
were not to provide fair trials, not to provide American 
justice.
    Actually, they represented an abandonment of the rule of 
law that was necessitated by the abandonment of the Geneva 
Conventions, the approval of coercive and abusive interrogation 
techniques, the abandonment of the standard of humane 
treatment, the refusal to recognize people as POWs or to afford 
tribunals to those where there was a dispute.
    The decision to create a legal black hole at Guantanamo, 
where no one was entitled to challenge the basis for their 
detention, no one was entitled to counsel, no one was entitled 
to access to the courts--that was the context and the milieu in 
which original military commissions were created.
    And of course, ultimately they were struck down by the 
Supreme Court. But then the Military Commissions Act of 2006 
was rushed through Congress with minimal thought, minimal 
consideration, to what really needed to be done and whether 
there really was a need for these.
    The Obama administration has talked about military 
commissions being a suitable forum for law of war offenses, and 
I agree with that. They are a legitimate forum for law of war 
offenses. But what gets left out of the debate is that there 
are virtually no law of war offenses to be tried.
    If you look at what people have actually been charged with, 
they are charged with material support to terrorism, terrorism, 
conspiracy and spying, all non-law-of-war offenses, all 
offenses which are not--do not appear in the War Crimes Act, do 
not appear in the Rome Statute of the ICC, have not 
traditionally been law of war offenses.
    The things that do look like law of war offenses, such as 
killing civilians or murdering civilians, did not occur during 
the armed conflict. I have been in the United States Air Force 
since 1995. I was on active duty until 2005. We were not in a 
state of armed conflict prior to 9/11.
    And so we have a false premise that we are trying terrorism 
crimes--attack on the USS Cole, attack on U.S. embassies in 
Africa, and 9/11 itself--which were simply crimes--mass murder, 
hijacking. We don't need military commissions for those 
offenses.
    So go ahead and reform the military commissions, and create 
ones that are limited to law of war offenses and provide a fair 
trial, but there is not going to be anybody to try.
    Thank you.
    [The prepared statement of Major Frakt follows:]
                Prepared Statement of David J. R. Frakt




                               __________

    Mr. Nadler. Thank you. Can I just clarify one question 
before we go on to the next statement? Why did you say there 
would be nobody to try in a properly constituted military 
commissions for law of war violations?
    Major Frakt. Because, Mr. Chairman, none of the people that 
have been charged have been charged with actual law of war 
offenses.
    Now, I want to say there is one exception to that. There is 
a crime called murder in violation of the law of war, which 
sounds like a war crime. Certainly, if a murder was in 
violation of the law of war, that would be a war crime.
    However, the prior Administration took the position that 
murder in violation of the law of war was simply murder by an 
unprivileged belligerent or murder by an enemy combatant.
    In other words, the mere status of being an unlawful 
combatant--the jurisdictional prerequisite was--converted any 
act of fighting, any act of attempt to kill U.S. soldiers, into 
a war crime, and there have been--that has been challenged by 
the defense counsel in the military commissions.
    We have three different judges in three different cases 
decide that the government's interpretation of that law was 
wrong and that what Congress really intended was that in 
violation of the law of war means that there was something in 
the manner or method or circumstances that violated the law of 
war beyond simply being an unlawful combatant.
    So we don't have examples of during the actual armed 
conflict of people committing traditional law of war offenses.
    Mr. Nadler. Mr. Engel?

           TESTIMONY OF STEVEN A. ENGEL, DECHERT LLP

    Mr. Engel. Thank you, Chairman Nadler and Members of the 
Subcommittee. I appreciate the opportunity to appear here today 
to discuss the current proposals for the reform of the military 
commission system.
    During the prior Administration, I served for almost 3 
years in the Department of Justice's Office of Legal Counsel, 
and in that capacity I worked with Congress in developing the 
military commissions--the military commission system that was 
established under the Military Commissions Act.
    As President Obama recently recognized, the United States 
has long employed military commissions for prosecuting captured 
enemies for violations of the laws of war.
    Indeed, the list of Presidents who have employed 
commissions reads like a ``Who's Who'' of our greatest wartime 
leaders--George Washington, Abraham Lincoln, Franklin Delano 
Roosevelt--in other words, far from an invention of the last 
Administration, the United States has long recognized that 
military commissions represent the traditional means by which 
this country has tried captured enemies for war crimes.
    Because of this history and because of their particular use 
in the present conflict, it should not be surprising that 
President Obama has chosen to retain the military commission 
system for the trials of the Guantanamo detainees.
    Our Article III courts have an important role to play in 
our counterterrorism efforts. Article III courts have been 
particularly useful in this conflict when it comes to 
individuals apprehended in our borders by traditional law 
enforcement methods.
    When it comes, however, to enemy combatants captured by our 
military, the Obama administration, like its predecessor, has 
concluded that military commissions may be necessary and 
appropriate to permit the consideration of evidence and 
intelligence information that likely could not be used under 
the strict procedural rules of Article III courts.
    It is equally unsurprising that the Obama administration 
would seek to work with Congress to improve both the workings 
of the commissions and the public perception of their ability 
to fairly dispense justice in this armed conflict.
    Though I differ with some of the details of the proposals 
under consideration, I believe that there is much to recommend. 
The amendments in the Senate's defense authorization bill in 
particular reflect, in many respects, our experience in 
actually witnessings military commission prosecutions over the 
past 3 years.
    The bill also reflects a number of critical legal 
developments, including the Supreme Court's decision in the 
Boumediene case, which held that Guantanamo detainees have the 
right--the constitutional right to habeas corpus, and suggested 
in all likelihood that they would be entitled to other 
constitutional rights as well.
    Although much less publicized, the military judges who 
preside over the commission system itself have made a number of 
important rulings in interpreting the Military Commissions Act, 
and the Senate bill appropriately addresses these decisions.
    I would like to just comment briefly on two of the 
proposals that the Obama administration has made. I agree with 
the Administration that special attention needs to be given to 
the rule governing the admissibility of detainee statements, 
which, frankly, has become a lightning rod for critics who 
charge that it would permit convictions based upon so-called 
coerced evidence.
    Although the existing rule is actually quite similar to 
those employed by U.N.-authorized international war crimes 
tribunals, and military judges have considerable discretion 
under the statute which they have carefully exercised to ensure 
the fairness of the trials, I agree that amending the rule 
could have a positive impact on the commissions and 
particularly on the positive--on the perceptions of those 
commissions.
    I disagree with the Obama administration's proposal to 
remove the material support offense from prosecutors' arsenal. 
During the Civil War, the United States prosecuted by military 
commission those who provided horses and other support to 
Confederate guerillas.
    We are similarly entitled under the law of war to prosecute 
those who join or support unlawful forces such a al-Qaida, and 
our prosecutors have so far made good use of that authority.
    Although we can and should discuss how military commissions 
may be improved, I do not want to lose sight of the bigger 
picture here. Apart from any particular details, the 
endorsement of the military commission system by the Obama 
administration and by this Congress will establish the 
commissions on a sound, bipartisan basis.
    Despite our historical tradition, it is no secret that the 
use of commissions against al-Qaida has been a matter of some 
controversy and considerable litigation over the past several 
years.
    Those challenges have impeded the commissions' ability to 
mete out justice to the terrorists who have committed war 
crimes against Americans, including those who perpetrated the 
attacks of September 11.
    I am hopeful that the proposed reforms will remove some of 
the objections now extant to the commissions, place them on a 
sounder legal footing and allow the trials once again to move 
forward.
    I appreciate the opportunity to participate in the 
Subcommittee's discussion today, and I look forward to your 
questions.
    [The prepared statement of Mr. Engel follows:]
                 Prepared Statement of Steven A. Engel



                               __________

    Mr. Nadler. I thank you.
    Mr. Fidell?

 TESTIMONY OF EUGENE R. FIDELL, SENIOR RESEARCH SCHOLAR IN LAW 
      AND FLORENCE ROGATZ LECTURER IN LAW, YALE LAW SCHOOL

    Mr. Fidell. Thank you.
    Mr. Chairman, I am not going to read my statement at all. I 
would just like to make a few comments. To begin with, I 
appreciate your mention of my alma mater. As Daniel Webster 
said of Dartmouth College, ``it is a small school, yet there 
are those who love it.''
    Second, I would like to comment that I am here in my 
capacity as president of the National Institute of Military 
Justice. We have been deeply involved with the military 
commissions issues from the beginning.
    We have had observers from our staff and our advisory board 
and board of directors go to Guantanamo. We have generated a 
little pamphlet, which I can leave with you if you like.
    We don't have a party line. Our observers see things 
differently from person to person. I think they are quite 
interesting reading. I commend this to you.
    And let me mention that I am extremely proud that we have 
generated a volume of law reports, the Military Commission 
Reporter, gathering in one place all of the rulings of the 
military judges and the military commissions as well as the 
rulings--the unclassified ones--of the Court of Military 
Commission Review.
    Frankly, we had thought this would be a historical 
document, and it turns out, of course, that events seem to be 
heading in a direction where we are going to be living, for 
better or worse, with military commissions for some time.
    And before I leave that subject, I am happy to say that 
there are two members of the NIMJ staff present observing 
democracy in action here today. I am extremely pleased to 
recognize them. They spent the morning in Judge Ellen Huvelle's 
courtroom watching the proceedings that have been mentioned 
already. So what an exciting day for these young people.
    There are three points I would like to make. First, I would 
like to talk about transparency. Second, I would like to talk 
about appellate review. And third, I would like to talk about 
voluntariness.
    On the transparency point, you already mentioned, 
anticipating a point that I wanted to stress, the real 
importance of everyone seeing the Office of Legal Counsel 
opinion that has been mentioned.
    You can't have a discussion--and I think no Member of the 
House should--can be expected to act responsibly, to vote 
responsibly and intelligently on pending legislation without 
access to that opinion.
    We have lived through several years now of secret law from 
the Office of Legal Counsel. It has been a national disgrace.
    And right-minded people such as Dawn Johnson, whose 
nomination, surprisingly, is still pending in the other body, 
has worked to reform the Office of Legal Counsel, reform that 
process and keep it on a very solid, professional footing.
    We really all ought to see the Office of Legal Counsel 
opinion. That is this Administration's view of what due process 
entails.
    Second, with respect to, again, transparency, I would hope 
that some effort could be made to require the Department of 
Defense to use notice and comment rule-making when it changes 
the manual for courts martial--manual for military commissions.
    This is an easy one. It will help foster public confidence 
in the administration of justice. Yes, changes to the manual do 
have to be reported to Congress in advance, but why not use the 
normal process that we are familiar with through the 
Administrative Procedure Act, which admittedly doesn't apply 
here?
    But still, Congress might give serious attention to either 
amending the MCA or putting in some real, real strong language 
in a conference report saying, ``Look, let the people 
participate in the rule-making process.'' That is where a lot 
of the implementing rules get made. So I would like to put that 
on the table.
    The final point with respect to transparency--and it goes 
back to our ``1 M.C.'' law reporter--I hope that the Defense 
Department can be encouraged to get a more user-friendly Web 
site. We are happy to do this. We think it is important. We are 
proud of our work in putting out the Commission Reporter.
    It was a lot harder than it should have been. I think we, 
members of the public, people around the world, Members of 
Congress, your staffs should be able, with much less 
difficulty, to find out what the rulings have been rather than 
have it haphazard.
    With respect to appellate review, it is a good thing that 
the Senate bill includes appellate review by the Court of 
Appeals for the Armed Forces. It is incomprehensible to me that 
the MCA, which as previously was indicated, was passed kind of 
under the gun in 2006, provided for a review by the D.C. 
circuit.
    I have infinite respect for the D.C. circuit. I have 
practiced there for many years. I have also practiced for many 
years before the now Court of Appeals for the Armed Forces. You 
are dealing with military law of a kind, and that is supposed 
to be our expert body.
    Make sure, I hope, that the House conferees are solidly 
behind the Court of Appeals for the Armed Forces. They can do 
the job. They have the time. And it will provide a sort of 
coherence to these bodies of law.
    My final point concerns voluntariness. Voluntariness should 
be the test for admissibility of statements. I will say, as I 
think Mr. Johnson pointed out, Article 31 of the UCMJ does not 
apply. It was specifically carved out in the MCA. It should be 
carved back in.
    All you have to do is look at Article 31(d) of the UCMJ. 
That is the provision that says you cannot use evidence 
obtained by unlawful threats or even unlawful inducements. I 
cannot come up with a plausible reason for having a different 
test in this context than in the court-martial context.
    That is all I have, Mr. Chairman.
    [The prepared statement of Mr. Fidell follows:]
                 Prepared Statement of Eugene R. Fidell



                              ATTACHMENTS




                               __________

    Mr. Nadler. I thank you.
    We are expecting votes soon, and so I am going to be fairly 
strict in adhering to the 5-minute time line. I hope we will be 
able to get this all in before the votes, so that we don't have 
to ask you to stay until the votes are over.
    I recognize myself first.
    Mr. Fidell, in your written statement, you note that any 
military commission system must be appropriately limited in 
terms of who can be charged and for what crime.
    Do the amendments made by the Senate bill to the MCA set 
the correct standards of jurisdiction? What, if any, further 
changes are needed?
    Mr. Fidell. The changes go in the right direction, but as 
you will see from my statement--and here, I have to 
respectfully disagree with Mr. Engel, or at least a part of Mr. 
Engel's presentation. I think it is quite dangerous to accede 
to the notion that military commissions are kind of normal and 
accepted.
    I personally disagree that they date back to President 
Washington's--not his Administration, but to his term as 
commander in chief of the Continental Army.
    They should be limited in duration and subject matter and 
in personal jurisdiction, and any----
    Mr. Nadler. And do you----
    Mr. Fidell [continuing]. Anything that can be done in that 
direction should be done----
    Mr. Nadler. Can you give us in writing your recommendations 
as to what those limitations should be?
    Mr. Fidell. Yes. Some of those----
    Mr. Nadler. Thank you.
    Mr. Fidell [continuing]. Appear in an appendix to my 
testimony.
    Mr. Nadler. Thank you.
    Major Frakt, you note the lack of a minimum age limitation 
for military commissions. Your client has been referred to by 
some as a child soldier. You testify he may have been as young 
as 12 when captured in 2002.
    How might an age limit have changed his confinement and 
possible prosecution?
    Major Frakt. I am sorry, Mr. Chairman. I didn't hear the 
last sentence.
    Mr. Nadler. How might an age limit have changed his 
confinement and possible prosecution, if we had had an age 
limit?
    Major Frakt. Well, Mr. Chairman, it certainly would have 
precluded a prosecution. Had we complied with the optional 
protocol on the involvement of children in armed conflict, 
which the United States signed and ratified in 2002, he would 
have been treated very differently.
    He would not have been confined with adult prisoners. He 
would have been provided opportunities for rehabilitation and 
reintegration. And the U.S. in a report to that committee did 
acknowledge that both he and Omar Khadr were juveniles.
    Mr. Nadler. Thank you.
    Now, Major Frakt, the Administration has indicated that it 
will seek to detain individuals deemed dangerous, even if 
acquitted, based on its authority to hold individuals for the 
duration of hostilities, presumably as enemy combatants or 
whatever it is calling them these days.
    What, in your view, is the extent of this authority? Who 
would it possibly cover?
    Major Frakt. Well, I am skeptical about this alleged 
category of people that are too dangerous to release but yet 
can't be prosecuted. No one has ever identified any such 
individual.
    If we are confident that a person is--poses a danger to the 
United States, that should be based on past conduct, which 
should be prosecuteable, at a minimum, for material support of 
terrorism, which is a very flexible crime and it covers----
    Mr. Nadler. So you are skeptical----
    Major Frakt [continuing]. A lot of conduct.
    Mr. Nadler [continuing]. That there could be anybody in 
this third category.
    Major Frakt. Yes. But if there were, and it is troubling, 
the idea of someone being acquitted and then continuing to be 
held. But I do understand the distinction between the authority 
to hold someone under the law of war and the--versus for 
criminal prosecution.
    What I would say--and this is what we do in the Air Force--
if someone is prosecuted and acquitted, then whatever they were 
charged with cannot be the basis for subsequent administrative 
action--for example, if we wanted to administratively discharge 
someone.
    So if there were some other basis, other than what they 
were prosecuted for and acquitted, to hold them, then--then 
potentially there could be a lawful----
    Mr. Nadler. Let me ask you one further question, and please 
answer briefly. In your view, what evidence would be required 
to authorize indefinite detention, and what process would be 
needed to determine that?
    Major Frakt. Indefinite detention should not be authorized 
under any circumstances.
    Mr. Nadler. Well, indefinite detention during hostilities 
is what we are talking about, I presume.
    Major Frakt. Well, in that case, the nature of the 
hostilities need to be more clearly defined.
    Mr. Nadler. In law or in the case?
    Major Frakt. In law or in----
    Mr. Nadler. Or in the specific case.
    Major Frakt. Well, I think the Administration needs to 
define how--what the conflict is and how we will know when it 
ends.
    Mr. Nadler. And until it defines that, you can't hold 
someone as an enemy combatant?
    Major Frakt. Well, I think there is--clearly, we are in an 
armed conflict in Afghanistan, as well as Iraq, but let's say 
that that conflict comes to a close, as I hope it will. Are we 
still going to be in a war against al-Qaida and Taliban 
elsewhere? Probably.
    So I think we have to define what the conflict is.
    Mr. Nadler. That is defining the conflict in Afghanistan as 
one conflict, the conflict with--in Somalia as another, as 
opposed to a worldwide conflict.
    Major Frakt. Yes.
    Mr. Nadler. Mr. Fidell, could you comment on that very 
briefly, please?
    Mr. Fidell. The idea, unfortunately, took root under the 
administration of President George W. Bush that we were in 
basically perpetual war.
    We cannot have such a doctrine and yet also have indefinite 
detention, because that means detention to the end of time. It 
is for reasons like that that we have to rely on the Federal 
courts to be available in a meaningful way, as they have proven 
to be, ultimately, in the habeas cases.
    Mr. Nadler. Thank you. Thank you.
    Colonel Masciola, what are the key reforms--no, skip that 
one. Okay. I have exhausted my time. I yield.
    I recognize the gentleman from Massachusetts.
    Mr. Delahunt. First of all, thank you all for excellent 
testimony, and you are providing a great service to the country 
and to this particular discussion, which is very important.
    I can assure you, Colonel, that I agree totally with you in 
terms of adequate resources, and when I hear the convening 
authority--you know, 46 out of 57, I am reminded of the fact 
that we had a convening authority that allegedly made 
statements about, you know, ``This is about convictions, not 
about acquittals. We are not going to have any acquittals.'' It 
was reported in the newspaper.
    That doesn't mean it is true, but if that is the case, that 
I find repugnant and offensive, and again adds to why we need 
to do--to close Guantanamo and to move forward in a way that I 
think you are all suggesting.
    Mr. Engel, I heard you say captured on the battlefield. You 
know, when we talk about the military commission, and you use 
terms like captured by our forces--that is why I posed the 
question to the earlier panel about, you know, how many were 
actually captured by our forces.
    Would you make a distinction between individuals that are 
captured by American forces or are bought by Americans to--on 
the basis of some poor Afghani or Pakistani saying that they 
are terrorists?
    Mr. Engel. Well, I wouldn't distinguish the legal matter 
specifically with respect to who made the capture. I fully 
agree with you that it is very important that we make sure that 
the folks that we are holding are, in fact----
    Mr. Delahunt. Is that truly----
    Mr. Engel [continuing]. Enemies of our country. That is----
    Mr. Delahunt. Is that truly----
    Mr. Engel. We agree about that.
    Mr. Delahunt. Is that truly a capture?
    Mr. Engel. Sorry? I mean, we----
    Mr. Delahunt. Is that a capture when we buy them?
    Mr. Engel. I think when we invaded Afghanistan at the 
time----
    Mr. Delahunt. Right.
    Mr. Engel [continuing]. We fought with a number of local 
forces there and----
    Mr. Delahunt. I understand.
    Mr. Engel [continuing]. Benefitted from that. When we were 
successful in routing Afghan and al-Qaida forces at Tora Bora, 
they went east and they went into Pakistan, and we had a number 
of highly significant captures and the like----
    Mr. Delahunt. That is fine.
    Mr. Engel [continuing]. Which was done by--you know, by our 
allies and co-belligerents, and folks--you know, and people 
from the government of Pakistan as well.
    It is important to make sure that we have the right people, 
clearly.
    Mr. Delahunt. Right.
    Mr. Engel. And it----
    Mr. Delahunt. We got a lot of the wrong people, 
unfortunately.
    Mr. Engel [continuing]. It becomes more--it becomes more 
difficult when there are circumstances----
    Mr. Delahunt. Right.
    Mr. Engel [continuing]. In which other governments or----
    Mr. Delahunt. But would----
    Mr. Engel [continuing]. Foreign governments are providing 
that.
    Mr. Delahunt [continuing]. Would you feel comfortable 
relying on information coming from the Pakistani--you know, the 
ISI, who were, you know, given by tribal leaders, you know, 
four Uighur detainees----
    Mr. Engel. I----
    Mr. Delahunt [continuing]. Who had absolutely, you know, 
nothing at their disposal to determine whether they were 
terrorists or not?
    Mr. Engel. As a general matter, not speaking about the 
specific cases----
    Mr. Delahunt. Okay.
    Mr. Engel [continuing]. And intelligence information, we 
have relied and continue to rely upon the Pakistani 
intelligence services for very important information. They are 
an important ally in--you know, in this armed conflict, both 
since----
    Mr. Delahunt. Both for----
    Mr. Engel [continuing]. Early 2001 and----
    Mr. Delahunt [continuing]. Us and for our enemy, I would 
suggest. Right. I mean, we----
    Mr. Engel. Your other jurisdiction.
    Mr. Delahunt. Right.
    Mr. Engel. I think think the Uighurs is a difficult case. 
And it was recognized, you know----
    Mr. Delahunt. Early on.
    Mr. Engel [continuing]. By the--early on.
    Mr. Delahunt. Early on by the Bush administration.
    Mr. Engel. I mean, the Uighurs were not cleared for release 
on January 21, 2009----
    Mr. Delahunt. Well, because we didn't have CSRTs then.
    Mr. Engel. Sorry?
    Mr. Delahunt. We didn't have CSRTs.
    Mr. Engel. Yes--I----
    Mr. Delahunt. On January 21?
    Mr. Engel. Oh. Oh, right--CSRTs. Well, I mean, that system 
was stopped, frankly, after the Boumediene decision made clear 
that we would move all of the litigation to Federal court----
    Mr. Delahunt. Do you have any comments about that system?
    Mr. Engel. Well, that system was devised and developed 
based upon the model of Article 5 of the Geneva Conventions. I 
know that there have been individuals within the Department of 
Defense who have expressed critical opinions as to the 
administration of the CSRT system.
    Mr. Delahunt. It was in the implementation.
    Mr. Engel. I also know that there have been a--there have 
been many folks within the Department of Defense who have come 
and testified and defended the system.
    Certainly, in its rules it was modeled after Article 5 of 
the Geneva Conventions, based really upon the Supreme Court's 
guidance.
    Mr. Delahunt. Mr. Fidell, give me your--I will throw this 
out, because I do have a particular interest.
    Mr. Fidell. Look, this train ran off the tracks when the 
government decided not to use the procedures set out in Army 
Regulation 190-8. That regulation had been on the books for 
years. We used the Article 5 screening tribunals that are 
supposed to separate the wheat from the chaff, who is a POW and 
who isn't, to very good effect in the first Gulf War.
    And it turned out that I think two-thirds or maybe three-
quarters of the people who had been apprehended, have come into 
our custody----
    Mr. Delahunt. Arrived on our doorstep.
    Mr. Fidell [continuing]. Arrived on our doorstep----
    Mr. Delahunt. For $5,000.
    Mr. Fidell [continuing]. Were sent home. They served the 
purpose. And that is what should have been done. For that, the 
Bush administration has to accept responsibility. It was----
    Mr. Delahunt. One more final question.
    Mr. Fidell. It was a blunder.
    Mr. Delahunt. Major, I will tell you what I find 
particularly aggravating--and I don't usually attend classified 
briefings because I find they have very little value.
    And I can always read them the next day in the newspaper, 
because they are leaked by the executive. We all know that. And 
of course, they are concerned about us leaking, which I really 
find kind of humorous.
    In any event, I have heard of plea agreements where even 
release--paroles, I think, is the right term--where as part of 
the parole agreement the detainee is--has to sign something 
that he will not in any way discuss anything about his 
treatment, et cetera, et cetera. Can you comment on that?
    Major Frakt. Yes, Mr. Delahunt. There has only been one 
plea agreement that has come to fruition at Guantanamo, and 
that involved Mr. David Hicks, an Australian. And he did sign a 
number of conditions as part of that agreement.
    And you know, people will sign anything to get out of 
Guantanamo. And whether that was under duress and whether it 
was legal I don't have any special insight into.
    But I would note that what he was convicted of, which was 
material support for terrorism, the Obama administration has 
now acknowledged is not a war crime. So his conviction is very 
seriously in question.
    Mr. Fidell. There ought to be a law forbidding the----
    Mr. Nadler. The gentleman's time has expired.
    Mr. King. Mr. Chairman, I will yield my time.
    Mr. Nadler. The gentleman's----
    Mr. Fidell. There ought to be a law forbidding the 
extraction of any kind of signed statement as a condition of 
release.
    Only today or yesterday the newspapers reported that the 
Iranian authorities, when they released young people who had 
been taken into custody during the recent upheaval in Iran, 
were being required to sign documents saying they had been 
treated nicely by the Iranian prison authorities.
    So anything like that should be really taken with a very 
large grain of salt.
    Mr. Nadler. I thank the gentleman.
    I thank the gentleman for yielding.
    All time is expired. We have 2 minutes left on the vote. 
Without objection, all Members--I thank the witnesses.
    Without objection, all Members have 5 legislative days to 
submit to the Chair additional written questions for the 
witnesses which we will forward and ask the witnesses to 
respond as promptly as they can so that their answers may be 
made part of the record.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    Again, we thank the witnesses for their patience and for 
their testimony.
    With that, this hearing is adjourned.
    [Whereupon, at 5:43 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record



                                 
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